Petition for Writ of Certiorari — Wilson v. Johnson

ee

|) Suprem> “our, U.S,

a FILED

021018 yu 25 2002

AFRGE Ob ERE CLERK

In the

Supreme Court of United S

Robert Wilson,

Petitioner

vs.

John Dalton, Secretary of the Navy

Respondent

On petition for a Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

David Burkenroad

1255 Lincoln Blvd., Third floor

Santa Monica, Calif. 90401

Telephone (310) 393-1524 fax (310) 576-3581

Attorney for Petitioner, Robert C. Wilson

QUESTIONS PRESENTED

Did the Ninth Circuit's refusal to overturn the previous

decision in Wilson v Dalton, Secretary of Navy which

demonstrates that the Navy committed perjury and the

U.S. Attorney suborned perjury during trial warrant this

court to conduct an independent investigation?

Does the Ninth Circuit's refusal to overturn it's decision

in Wilson v Drake in spite of evidence that the Navy

committed perjury in obtaining U.S. Attorney

representation, and the Ninth circuit's decision was in

conflict with congressional intent regarding FTCA and

FELRTCA warrant reversal?

Did the Ninth Circuit Panel abuse its discretion when it

denied Petitioner's request for Judicial Notice on

evidence demonstrating perjury by the Navy and

suborned perjury by the U.S. Attorney, especially since

the entire Ninth Circuit Panel could have seen the

perjury for themselves?

Did the Ninth Circuit abuse its discretion when it failed

to reverse the District Court's grant of the Navy's

motion for summary judgment, when the District Court

impermissably made numerous findings of fact, which

were either disputed or not framed by the Navy's

motion, thereby denying Petitioner his constitutional,

Seventh Amendment right to a jury trial on the facts?

Did the Ninth Circuit abuse its discretion when it

refused petitioner's petition for rehearing with evidence

demonstrating an agreement to strike the word"severe"

from his complaint, especially since the Ninth circuit's

opinion was based on lack of such evidence?

ji

TABLE OF CONTENTS

QUESTIONS PRESENTED .........csssssse sssessseeseeees ij

TABLE OF AUTHORITIES. ......:.sssssssssssssseessseeees ‘i

CT BN i eesscilsininstetsssnisiisnnitnidan l

TI theistic cacinstectieelesnidtotnies l

PER I sciikcinit sates sh inisestnnsinSincncone l

STATEMENT OF THE CASE.......scssssssssssssssessessees 2

REASONS FOR GRANTING THE WRIT............. 10

1. The Ninth Circuit refused to address an important

federal question raised in Wilson v. Drake ......... 11

2. The Ninth Circuit refused to correct their erroneous

conclusion of law in Wilson v. Drake ................ 12

3. The Ninth Circuit refused to correct Wilson v.

Drake in light of the Navy's fraud ..................... 13

4. The Ninth Circuit refused to overturn Wilson v.

Navy, in spite of the Navy's perjury...............0... 15

5. The Ninth Circuit refused to overturn Wilson v.

Navy, in effect challenging Fortner .................+ 19

6. The Ninth Circuit's refused to accept evidence

which would have overturned Wilson v Navy ..21

CAA Fe til PTE chreihetareatbantnciahignismniininseieinremnib 21

TABLE OF AUTHORITIES

Cases Page -

United States v. Aguon 851 F2d 1158 11

Williams v. United States 350 U.S. 857 _ 11

Williams-Scaife vs. Dept of Defense 11

Dependent Schools, 925 F2d 346 |

Wilkinson v. Gray 523 FSupp377, 11

cert denied 103 S. Ct. 209;

Henderson v. U.S. 429 F2d 588; — 11

Rallis v. She 821 F Supp 466; 1]

Nadler v. Mann 951 F2d 301; 11

Woods v. McGuire 954 F2d 388 1]

Pelletier v. Home Federal Savings Bank, | 1]

968 F2d 865 (9th Cir. 1992)

Wiison v. Drake, 87 F3d 7813 12

Mary M v. City of Los Angeles 814 P2d 1341. 13

Chambers v. NASCO, Inc.111 S.Ct. 2123 13,15,18,19

Fortner Enterprises Inc., v. U.S. Steel, 20

394 US 495

Toyota Motor v Williams 122 S.Ct. 681 2,3,4

Helvering v Hallock 309 US 106 11

iv

TABLE OF AUTHORITIES (cont'd)

Cases

Kilborn v Thompson 103 US 168

Barton v Northern P R Co. 154 US 288

Barnett v US Air, Inc. 228 F3d 1105

Navarette v Procunier 536 F2d 2277

Pepper & Tanner, Inc. v

Shamrock Broadcasting, Inc

563 F2d 391

Warrior Towbigbee Transport Co. v

M/V Nan Fung

695 F2d 1294

Farberwerke Hoescht A.G. v

M/V "Don Hicky"

598 F2d 795

Schlagenhauf v Holder 379 US 104

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12

12

21

21

21

21

21

22

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Opinion of the Court of Appeals for the Ninth

Circuit in Wilson v. Drake is reported at 87 F3d 7813

(1996).

The Opinion in Wilson v. John Dalton, Secretary of

Navy is found in the appendix, below. ("App").

The order denying the petition for rehearing with

suggestion for rehearing en banc is also included in the

appendix.

The memoranda opinions of the United States

District Court for Central California (Audrey B.

Coliins,J.) are reprinted in the appendix.

JURISDICTION

By order dated 26 April 20002, the panel voted to

deny the petition for rehearing and rehearing en banc

based upon the recommendation of Judge Fletcher.

The jurisdiction of the Supreme Court to review the

judgment of the Ninth Circuit is invoked under 28

U.S.C. 1254(1)

STATUTES INVOLVED

The statutes principally involved in this case are:

1) 28 U.S.C. 1346, Federal Tort Claims Act

2) 28 U.S.C. 2679 Federal Employee Liability

Reform Tort Claims Act

3) 18 U.S.C. Subornation of perjury:

4) 29 U.S.C. 701 Rehabilitation Act

STATEMENT OF THE CASE

Petitioner has provided a lodging of the exhibits

referenced in this petition with this Court. Although the

clerk's office discourages this practice, it stated the

practice is permissable. The reason for providing the

lodging of the exhibits is to provide the Court with the

actual evidence of the serious allegations raised, namely

perjury and suborning perjury.

Petitioner began working for Respondent's military

facility at Point Mugu, California, in April 1988 as an

Electronic Engineer. His duties primarily involved

performing design and analysis of weapon systems and

preparing reports of his findings. Almost all of his work

was done on a computer.

Shortly therafter, he was diagnosed with two

herniated discs in his lower back. His physical

therapist, Larry Watts, recommended a series of back

exercises as well as an ergonomic chair for his office.

His supervisor at that time, Guy Cooper, provided an

ergonomic chair and allowed time off for the back

exercises. Petitioner was also diagnosed with ankle

maladies by another physician, who recommended

orthotic appliances. Petitioner never filed a workman's

compensation claim for either injury.

To the extent that this Court believes that Toyota v

Williams,122 S.Ct. 681 (20002) ("Toyota") makes this

case moot, this case is completely distinguishable

because unlike Toyota, the Court determined that

Respondent's medical restrictions (repetitive work with

hands and arms extended at or above shoulder levels for

extended periods of time) "is not an important part of

most peoples daily lives." Toyota at 693.

F

Petitioner's carpal tunnel syndrome (characterized as

"severe" according to several medical reports) restricted

and prevented petitioner from engaging in a major life

activity that a significant number of people engage in

(See NIOSH Repetitive Motions) namely computor

typing and handwriting.

The Court in Toyota withheld the arguement "that

working could be considered a major life activity",

concluded"we need not decide this difficult question

today." Toyota at 692.

This case compels the-arguement that repetitive motions

associated with working is a major life activity,

because, as shown in the NIOSH Table a significant

number of people in a wide range of occupations are

affected by repetitive motions. |

By granting this petition, this court could clarify the

boundaries between work, major life activities,

Moreover, petitioner's injury is not limited to carpal

tunnel syndrome. As noted in Dr. Roback's report ( in

. which he evaluated petitioner's condition after the Navy

failed to provide the accommodations requested by

petitioner's previous physicians), Dr. Roback noted

"Because of the patients foot abnormalities, he is unable

to do any work which requires ambulation. This is

further intensified because of his back which limits

such activities as bending, twisting, overhead work,

lifting, carrying, pushing and pulling. The patient is

unable to do any gainful employment in a sitting

position because prolonged sitting does bother his back.

Furthermore, most jobs in a sitting capacity require

extensive use of the upper extremities for things such as

computor input, typing or writing. Because of the

nature of his back injury (herniated disc), wrist and

3

c

hand condition (carpal tunnel syndrome), and the

inflammatory condition of his feet (as demonstrated on

the bone scan). He probably will require carpal tunnel

release of both hands (particularly if he attempts to do

any extensive writing, filing,computor input..).It is also

likely that the patient will require surgery for his lumbar

disc and associated spinal stenosis"

Finally, as noted in Toyota, "household chores" are

considered of central importance to most peoples daily

lives. Toyota at 683. As noted in petitioner's

deposition, petitioner's meal preparation (post injury)

consists of foods that don't require "a great deal of

preparation", such as fresh fruits/vegetables, microwave

(meals), and "eating out". (On 6. &

Since petitioner lives on a boat, he mostly pays people

to clean/work on it, instead of doing the work himself.

Petitioner also pays people to work on his car(s).

In August 1991, Petitioner was diagnosed with bilateral

carpal tunnel syndrome, which means that the condition

affects both wrists and hands, by his treating physician,

Dr. Desiree Domingo Foraste, General Practitioner,

who prescribed several weeks time off from work as

well as physical therapy for his hands. She also

requested his employer provide another ergonomic

chair for petitioner's back since the original chair was

ineffective in assisting petitioner's back injury. (See

Lodging Exh.12)@) His new physical therapist,Bobbie

Johnson, asked petitioner a series of questions

regarding his work office area structure, provided

publications issued by the Occupational Safety annd

Health Administration (OSHA), and suggested

petitioner file a claim for workman's compensation.

Weeks later, Dr. Foraste allowed petitioner to return to

work, with restrictions and requests for

accommodation, y

PIREST AVAILABLE COPY

we

including specific dimensions for the ergonomic chair,

no

computor typing or reproduced motion, handwriting

only short notes, and an adjustable work surface unit.

In February 1992, Petitioner transferred his care to hand

specialist, Dr. Dennis Phelps, who also diagnosed

bilateral carpal tunnel syndrome. !n March 1992, Dr.

Phelps work restrictions "precluded (Petitioner) from

keypunching, (computor) typing , data entering,

etc.".Dr. Phelps concluded, "I recommend that he be

permitted to dictate rather than write whenever

possible" (Lodging Ex 13) In May 1992, Dr. Phelps

recommended a deskomatic device for petitioner.

(Lodging Ex 14)

In September 1992, Navy physician, Dr. Stoerman

evaluated petitioner as having a "severe case of carpal

tunnel syndrome" and sternly warned the Navy "if Dr.

Phelps recommendations are not followed Mr. Wilson

(Petitioner) could have permanent severe nerve

damage". (Lodging Ex 15)

*This fact was ignored by the trial court, even though

fact and evidence provided in Oppostion to Motion for

Summary Judgment. (OMSJ) (See lodging Ex )

In January 1993, Dr. Phelps evaluated Petitioner at

Respondent's request. Dr. Phelps noted Petitioner's

condition as "worse".* The nerve conduction studies

requested by Dr. Phelps documented petitioner as

having "severe temporal dispersion" in his hands.* Dr.

Phelps "strongly recommended" an ergonomic

evaluation of petitioners work area by Pete Johnson, an

ergonomist associated with National Institute for

Occupational

Safety and Health (NIOSH).(Lodging Ex 16)

*This portion of fact was ignored by the trial court,

even though fact and a provided in OSMJ

In March 1994, Dr. Blacker, Petitioner's new treating

physician, evaluated Petitioner, diagnosed bi-lateral

carpal tunnel syndrome, and placed initial work

restrictions of no flexion or twisting of both wrists and

fingers. He later modified the restrictions to include

some computor typing, but added, "I think he will have

recurrent pain at his present level and he might have

some increase in his symptoms."*

(Lodging Ex17,18)

*This portion of fact was ignored by the trial court, |

even though fact and evidence provided in OSMJ

In July 1994, Dr. Blacker modified his work restrictions

to state, "I think he should avoid very repetitive work. I

think it is advantageous for him to have been provided

with dictating equipment in order to allleviate the

repetitious motions associated with writing."*

(Lodging Ex 19) ‘

*This portion of fact was ignored by the trial court,

even though fact and evidence provided in OSMJ

Although the Navy complied with Dr. Blacker's

restriction to avoid very repetitive motions associated

with computor typing by providing petitioner with a

voice control computor, the Navy denied petitioner's

request, as well as the Navy's Problem solving Team

recommendation to "transfer (petitioner) Wilson to

another Supervisor or activity." (Lodging Ex 20)

In addition, the Navy's supervisor, Wil Bertelt,

declined to

provide computor software to allow petitioner to create

computor program flowcharts on the voice control

computor,** declined to provide an upgraded version to

petitioner's voice control software,** and provided

petitioner with a ee printer that the supervisor

admitted "It started acting up. I am not sure what is

wrong."**(Lodging Ex 21,22,23)

**These facts and evidence were omitted by trial court

in response to Respondent's Motion in Limine to

Exclude Evidence.(RMLEE)

Wil Bertelt previously offered petitioner a deskomatic

device that was "broken, but that it "may be able to be

repaired".*(Lodging Ex 24)

*This portion of fact was ignored by the trial court,

even though fact and evidence provided in OSMJ

In rating petitioners final task rating, Wil Bertelt

concluded that petitioner deserved a less than fully

successful rating because he failed to provide a system

program description, which Wil concluded was 30% of

the task, even though the evidence showed that

petitioner did provide the system program description to

Wil Bertelt. Steve Stanfeld, the engineer who designed

petitioner's final task and gave petitioner a fully

successful performance rating, concluded that the

system program description was not 30% of the task

and in fact, "trivial" (Lodging Ex 25)

**These facts and evidence were omitted by trial court

in response to Respondent's Motion in Limine to

Exclude Evidence.(RMLEE)

In March 1995, Dr. Blacker evaluated Petitioners hands

at the request of the Navy and U.S. Dept of Labor and

determined his permanent and stationary level of injury

at that time to be 25% loss of strength in both arms. Dr.

Blacker also opined that Petitioner was no longer able

to work in his usual and customary capacity and

requested a job analysis prior to releasing him back to

work for the Navy and vocational rehabilitation.

(Lodging Ex 26)

*This portion of fact was ignored by the trial court,

_ even though fact and sn ms provided in OSMJ

The Navy declined to provide a job analysis to Dr.

Blacker and in April 1995, the Navy terminated

Petitioner for poor performance.(Lodging Ex 27)

In March 1996, Dr. Micheal Roback evaluated

Petitioner and determined 100% medical disability

citing "inability to sit for long periods of time due to

back injury, restrictions on computor typing, extensive

filing, and limited handwriting. When asked by the

Social Security Administration to clarify work

restrictions for any computor typing, filing, or

handwriting, Dr. Roback responded, no repetitive

motions, no sitting in any continous position, lifting

restrictions less than ten pounds, no sitting in a

nonergonomic environment." (Lodging Ex 28)

BEFORE THE TRIAL, in an unusual move, Judge

Audrey Collins made numerous "findings of fact"

regarding Respondent's Motion for Partial Summary

Judgment. Judge Collins concluded that the Navy

provided reasonable accommodations by concluding an

employer isn't required to provide the latest and

"greatest" and she "found that the Navy tried other

things out" in an effort to provide reasonable

accommodations. Judge Collins specifically precluded

alot of evidence from being heard at the trial regarding

the perjury committed by the Navy after hearing

respondents Motion in Limine to preclude evidence

based on her previous findings in the Summary

Judgment. Regarding petitioner's claim (along with

supporting evidence) that the Navy unjustly terminated

petitioner for failing to provide a system program , » )35

description, Judge Collins precluded this fact ind

evidence because it was "stray, nonactionable

comment".(App. Ex. 2,3)

The trial court granted Defendant's request for a mental

examination, even though pottionst agreed to strike

"severe" from his complaint, so that his complaint

would read "emotional distress" instead of "severe

emotional distress".

The psychiatrist's written examination revealed that the

psychiatrist based his clinical "findings" that Petitioner

was schizotypo-paranoid because of his "perceptions of

wrongdoing in the work-environment", which the

psychiatrist stated at least 10 times in his report. The

psychiatrist's report relied on Judge Audrey Collin's

Order regarding defendant's motion for Summary

Judgment as the basis for his findings because he siated,

"Judge Collin's order is thorough, ample, logical,

persuasive, and it spares me the task of analyzing the

same data” regarding petitioner's claim that the Navy

did not provide "reasonable accommodations".

(Lodging Ex 29)

DURING THE TRIAL, Exhibit 10 demonstrates, when

petitioner was on the witness stand being asked to

describe physically what occurred at work regarding his

accomodations the Trial Court interjected, "And let me

just tell the jury. The Court has already ruled that he

was reasonably accomodated by his employer"..."but

this Court has already ruled, and you will be instructed

that the Department of the Navy reasonably

accommodated him, meaning, as you'll find out from

the trial, that they reasonably responded to his requests

for reasonable accomodation."... The Court ordered that

petitioner's response "that he felt he wasn't reasonably

accomodated" was to be "stricken"

Exhibit 11 demonstrates when Petitioner's attorney

_ began cross-examining Petitioner's former supervisor

regarding the secretary's failure to take dictation, the

trial court interrupted, without an objection from the

defendants, "I'm going to sustain an objection. This

goes to reasonable accomodation, and the court has

already ruled on that" q

Exhibit 12 demonstrates when petitioner's attorney

began cross-examining Mary Wedel, Navy employee

regarding Dr. Foraste's request for a 27 inch desk, the

trial court interrupted, "Counsel, at this point I'm going

to interpose an objection,... This is all going to

reasonable accomodation..."

On appeal, petitioner cited summary judgment case

law and many examples of where Judge Collins made

numerous "findings" in her order regarding respondent's

motion for partial summary judgment. Petitioner also

filed a motion for sanctions citing numerous incidents

and evidence demonstrating perjury by Navy

employees, which the Ninth circuit denied.( Lodging

Ex 5)

The most outrageous portion(s) of the trial court's

opinion is where she stated facts that were inapposite of

the evidence.

This occurred several times. Most notably is the trial

court's statement that "Dr. Roback" fails to provide a

factual bases for the medical opinion and fails to

provide his medical background"

As shown, (Lodging Ex 6) Dr. Roback's medical

background was provided and he did set forth the bases —

for his medical opinion. (pp Be 2 p.U

Additionally, the trial court stated, ""the OSH

conducted a second ergonomic survey and videotaped

it. After the second ergonomic survey, Johhnson

recommended the following work station adjustment: 1)

an ergonomic chair without arms; a wrist pad; and 3) a

copyholder" figy. Ge 4 p-3

As noted, Johnson stated in her letter, "After reviewing

the video I would still recommend the following, (same

list originally recommended) (Lodging Ex 7)

REASONS FOR GRANTING THE WRIT

Petitioner raised the following issues in a petition for

rehearing with the Ninth circuit. On occasion, the

Ninth circuit has granted other petitions in which the

parties cited a published case that was incorrect as a

matter of law, in order to correct the published case.

See United States v. Aguon 851 F2d 1158 (9th Cir.

1988)and Williams-Scaife vs. Dept of Defense

Dependent Schools, 925 F2d 346,347 (9th Cir. 1991).

In other U S Supreme Court cases (Helvering

v Hallock, 309 US 106, Kilbourn v Thompson 103 US

168, Barden v Northern P.R Co. 154 US 288) Stare

Decises mandates that when a case is erroneous as a

matter of law, the case should be overturned.

I. The Ninth Circuit refused to address an

important federal question raised in Wilson v.

Drake that is in conflict with the U. S. Supreme

Court, other courts, other 9th circuit relevent

cases,and congress

For Federal Tort Claims Act [FTCA] Claims, in

Williams v. United States 350 U.S. 857, this court

decided per curiam, "This case is controlled by

California doctrine of respondent superior."

For Federal Employee Liability Reform Tort Claim Act

[FELRTCA] claims, "In determining whether acts of a

Federal Employee subject to a Federal Tort Claim are

within scope of his employment, court is bound to apply

state law." Wilkinson v. Gray 523 FSupp377, cert

denied 103 S. Ct. 209;Henderson v. U.S. 429 F2d

588;Rallis v. She 821 F Supp 466;Nadler v. Mann 951

F2d 301;Woods v. McGuire 954 F2d 388

See also Pelletier v. Home Federal Savings Bank, 968

F2d 865 (9th Cir. 1992) @ 876, in which the Ninth

iq

circuit held, "the question whether a federal employee

who's allegedly tortious conduct is the subject of a

lawsuit...is to be answered according to the principles of

respondent superior.".

In H.R. Report 700, 100th Congress "The legislative

history of the FELRTCA clearly establishes that

Congress intended the principles of respondent superior

to govern FTCA claims to control decisions regarding

entitlement'to substitution Pelletier 968 F2d at 876

However, in Wilson v. Drake, 87 F3d 7813 (9th Cir.

1996), the Ninth Circuit held, "Application of state-law

policy considerations would nullify federal statutes that

grant immunity to federal employees so that they can

perform their functions without the threat of tort

actions."

2. The Ninth Circuit refused to correct their —

erroneous conclusion of law regarding contradictory

material facts.

At page 7821 of Wilson v. Drake, the 9th Circuit

concluded, "In fact both of the alleged incidents took

place when Drake in his capacity as Wilson's

supervisor, was trying to obtain information from

Wilson concerning Wilson's work related disability."

Wilson's declaration stated, "Drake came to the door of

my office at the base, to request information as to a

recommendation which had been given by one of my

doctors to accomodate my handicap. I responded that I

had supplied through the doctor and other wise,

everything necessary to support such request for a

reasonable accomodation."..."later in the day, about 2;

00 p.m., Drake began approaching my office inquiring

as to whether I had provided him some typewritten

material, which he asserted was due the previous

th

Friday. I exhibited the tape recorder upon Drake's entry

into my office as I believed he wanted to have

conversation concerning my request for reasonable

accommodation..." (Lodging Ex 30)

Drake's declaration stated, "There was another issue

that needed to be resolved, that of a form that the

human resources office needed. The purpose of the

form was to let human resources know his doctor's

views on what restrictions exist as to Mr. Wilson's

ability to work." and "after Mr. Wilson had returned

from the restroom, I returned to his office to talk about

the form."(Lodging 31)

The determination whether an employee has acted

within scope of employment presents a question of fact,

it becomes a question of law, when, "the facts are

undisputed and no conflicting inferences are

possible."Mary M v. City of Los Angeles 814 P2d

1341.

Clearly there was a disputed material fact as to whether

work restriction information had been provided, yet the

Ninth Circuit sided with Drake's version depriving

Wilson of a jury trial on the factual dispute.

The Ninth Circuit refused to correct Wilson v.

Drake in light of the fraud committed by the Navy in

Wilson v. Drake when the Navy obtained Dept of

Justice representation.

The United States Supreme Court held in Chambers v.

NASCO, Inc.111 S.Ct. 2123, 2124 (1991), "a federai

court has the power to vacate its own judgment upon

proof that fraud has been perpetrated upon the court"

and that a "federal court has the power to conduct an

independent investigation in order to determine whether

it has been a victim of sae Chambers 111 S. Ct. at 4124.

1

In the Navy's letter to the U.S. Attorney's office,

(Lodging Ex 40) the Navy provided misleading facts

(portraying petitioner as "ergonomic changes were

made to his workstation..these efforts did not satisfy

Mr. Wilson" and "Mr. Wilson became increasingly

agitated, confrontational, and contentious in dealings

with his supervisors over his work assignments")so that

Sam Drake could obtain Department of Justice

representation regarding the assault and battery

incident.

Mary Wedel's original declaration provided to the U. S.

Attorney's office stated, "On several occasions staff or I

have submitted documents to Sam Drake, Mr. Wilson's

supervisor, requiring that Mr. Drake forward them to

Robert Wilson or through Mr. Wilson to Mr. Wilson's

doctors. The completion of these forms is necessary in

order to comply with the requirements of FECA. It was

one of Mr. Drake's duties, as Mr. Wilson's supervisor,

to give these forms to Mr. Wilson."(Lodging Ex 41)

In another declaration under penalty of perjury, Mary

Wedel stated, "It is my understanding that the

complainant has named me as the official responsible

for faxing‘a letter to Dr. Blacker without first notifying

him (complainant). I telefaxed Dr. Blacker a letter to

request information concerning Mr. Wilson's work

restrictions. This is standard practice in accordance

with 20 CFR CH.1 Section 10.123. I know of no

regulation whcih requires that we notify an employee

first."(Lodging Ex 42)

Navy employee, Nick Matusewicz, wrote in his official

statement in a letter supporting a request for Dept of

Justice representation, described petitioner as having

"contentious attitude and uncooperativeness" and "Mr.

Drake is without fault in trying to manage a difficult

employee". (Lodging 43) iq

However, in another letter written by Mr. Drake and

distributed to Nick Matusewicz, Mr. Drake stated he

knew (petitioner) Wilson was "taking his work off base

and paying someone to type it. Some of his memos and

reports had improved in recent weeks that were beyond

his normal offerings."(Lodging Ex 44)

Navy employee Sam Drake noted in his daily log of

events -

that at 1320 Mary Wedel contacted the doctor's office,

the doctor's office acknowledged receiving the work

restriction form and told Mary Wedel the "work

restrictions were the same." Dr. Phelps work restrictions

stated, "I recommend that he be permitted to dictate

rather than write whenever possible." In the same daily

log Sam Drake later noted that Wilsonn (petitioner)

accused Drake of "trying to hit him."

(Lodging Ex 45)

Clearly Mary Wedel knew it was not a requirement for

Drake to obtain work restriction information because

she cited the law that stated otherwise. Nick

Matusewicz knew Sam Drake was not providing

Wilson proper accomodations because Sam Drake

informed him. Sam Drake contradicted his own

declaration when he stated he was attempting to obtain

work restriction information because he admitted in his

OW writing he obtained the "same" work restrictions

from Mary Wedel before he noted the assault and

battery incident.

2. The Ninth Circuit refused to overturn Wilson v.

Navy, in spite of the perjury commited by the Navy

and the trial court's actions that prevented the jury

from hearing the perjury. They further refused to

sanction the U.S. Attorney for suborning the perjury

in spite of the U.S. Supreme Court's ruling in

Chamber v. NASCO had

Under oath, Sam Drake informed an EEOC

Investigator, "I offered Mr. Wilson the use of my

secretary to take his dictation and type up his reports”.

However, in his memos he wrote, "Told him to get his

ass in here and I would take his dictation", "Told him

Beverly would not take direct dictation into the

computor..he is responsible for his work", and "He

again stated he was taking his work off base and paying

someone to type it. Some of his memos and reports

have improved in recent weeks that were beyond his

normal offerings. I had assumed he was having another

secretary in the division do his editing and typing."

(Lodging Ex 50,51,52,53)

When petitioner's attorney began cross-examining

Drake regarding dictation accommodations, the trial

court interjected, "this goes to reasonable

accommodations and the court has already ruled on

that". (Lodging Ex 54)

At trial, Grace Tatum testified,"We had numerous

memoranda to see where Mr. Bertelt had offered him

suggestions, alternatives, other things other resources

that could be available to assist him in improving his

performance". However, Wil Bertelt's memorandum

stated, "I re-emphasize to you that you are responsible

for accomplishing the job using the resources made

available to you(no matter how crude, inefficient these

resources might be) sometimes you have to be creative

and improvise in order to get the job done on

schedule." In response to a motion in limine, the trial

court excluded the statement, "Wil admitted the

resources provided by him were "crude"

(Lodging Ex 55,56,57)

Under oath to an EEOC Investigator, Beverly Muchow

stated, "I did a lot of transcription of Mr. Wilson's work

and also his writing for a long time due to his handicap.

I don't remember the dates, but I have never refused any

work that has been given to me". In her memo to Sam

Drake, Beverly stated "Then he said, actually I was

going to dictate to you and do it on a computer at the

same time. And I said no because Sam said it would

take so much of my time. Gerry Weeks told me many

times not to accept anything from Wilson if he cannot

give me in readable writing." (Lodging Ex 60,61)

Although the trial court did allow Lisa Stuckey to

testify that she witnessed Beverly Muchow yelling at

Petitioner to "talk to Sam about it and get out of my

office" when petitioner asked for dictation assistance,

the jury was only able to "hear" the trial court inform

them that the Navy provided reasonable

accommodations and, on one occasion, the secretary

yelled at petitioner. (Lodging Ex 62)

Under oath to the EEOC investigator, Gerry Weeks

stated, "I never formulated any opinion regarding his

medical condition", however in his own memo, Gerry

wrote "What is further exasperatingly is that Mr.

Wilson is back on the job under workmen's

compensation with restrictions which he keeps quoting

to us from his doctors. This situation keeps putting

management in a precarious position as having to

interpret these pseudo restrictions. At trial Gary Weeks

avoided perjury by stating, "I didn't know. I didn't

know if they were valid or not. " (Lodging Ex 70,71,72)

During trial Mary Wedel testified, in response to the

questions posed by the court, So you're saying you saw

it more less as their description of what a good work

station would be? "Right. " But at the end of that there

wasn't any language saying we request it? "Correct. ".

This contradicted the letter written by the physical

therapist stating "Appropriation of the above items

within a 30 day period would be most beneficial".

At trial when petitioners former attorney continued

questioning Mary Wedel regarding the physical

therapist recommendations, the trial court interjected,

"T've ruled the defendant reasonably accommodated. "

(Lodging Ex. 80,81,82)

Before the trial, Wil Bertelt wrote, "Mr. Wilson vas not

hindered in his test assignment by not having a printer

connected to his computor...! located a printer for him

at the earliest opportunity so as to allow him to do his -

own printing.and thus increase everyone's efficiency. "

In August 1994, Wil wrote, Until I locate a printer for

your system", "In November 1994, Wil wrote, " I am

working to locate 2 printer as I discussed with you...It

started to act up. I am not sure what is wrong. Under

oath at the MSPB Hearing, in response to the question,

"why did you wait three months before you actually

found a printer for me that wouldn't even work?", Wil

stated, "I --I did not hear or make--hear a request from

you for a printer, number one..I took it upon myself to

locate that printer, not because you were hounding me

for it..". The trial court precluded Facts 109 and 117

from the trial regarding the "broken" printer.(Lodging

Ex 91,92,93)

In his opposition to motion for Sanctions, the U.S.

Attorney does not deny knowledge of documentation of

perjury, because he admits the "documents appear to

have been exchanged in the course of discovery".

Without explaining how, his only defense is that the

documentation is "unauthenticated heresay" and

"Wilson failed to raise the issue below [at

trial]"(Lodging Ex. 99)

This court ruled in Chambers v. NASCO, Inc., 111 S.

Ct. 2123 (1991), Courts have inherent power to "punish

conduct which abuses the judicial process".

(8

The "inherent powers are "not governed by rule or

statute but by the control vested in courts to manage

their own affairs so as to achieve the orderly and

expeditious disposition of cases." Chambers 111 S. Ct.

at 2123; — Seel$ USC Suboming perjury _

3. The Ninth Circuit refused to overturn Wilson v.

Navy in spite of the trial court's and 9th circuit's

own erroneous finding of facts in violation of

Federal Rule of Civil Procedure 56 (c) and this

court's holding in Fortner Enterprises Inc.

The trial court made the following "findings";

"find..that the Navy made a good faith effort to

[accommodate (petitioner's) needs and requests]

657:14; "find ...that objectively, the accomodations

provided show that {the Navy] acted reasonably."ER

657:25n.122;"it is true that Defendant [the Navy] did

not comply with all of plaintiff's requests.."ER 657:13-

14; Navy"acted reasonably in addressing Plaintiff's

complaints" and the Navy"did not unreasonably handle

[petitioner's] request for an ergonomic chair."(App.

Ex.2)

The 9th Circuit opined, "However, the Navy produced

evidence that these incidents were caused by innocent

mistakes or decisions that were reasonable under the

circumstances, and Wilson offered no contrary

evidence."

(App. Ex. 1 p.3);"Wilson does not dispute that the Navy

provided some accommodations and has produced no

evidence tending to show that the Navy's

accommodations were not unreasonable." (App. Ex 1

p.4);"Wilson also cites verbal abuse and humiliation by

_his supervisors and a compensation claims

administrator. The record reveals the incidents in

question might be more accurately characterized as

interpersonal ee NASP Ex 1 p.3)

Federal Rules of Civil Procedure 56(c) specifically

states, "On a motion for Summary Judgment neither

Court of Appeals nor the trial court are permitted to

weigh the evidence, pass upon credibility, or speculate

as to ultimate findings of fact."

In Fortner Enterprises Inc., v. U.S. Steel, 394 US 495

this court stated, "On a motion for summary judgment,

it is not our function to speculate as to ultimate findings

of fact." >

The Ninth Circuit not only failed to overturn the

District Court's "findings" of fact, which were

impermissable because the facts were disputed and

because they had not been framed by the Navy's motion

for summary judgment, the Ninth Circuit repeated the

very same errors. In particular, the District Couirt could

not find that the Navy had reasonably accommodated

petitioner, because good faith was an essential element,

and bad faith is not a matter of law but of fact. (Barnett

v US. Air, Inc., 228 F 3d 1105 (9th Cir.2000) and it is

virtually imposssible to determine as a matter of fact,

because itis so subjective (Navarette v procunier, 536

F2d 22277). The Ninth Circuit, thus failed to follow a

long line of cases, which include Pepper & Tanner, Inc.

v. Shamrock Broadcasting, Inc.,563 F2d 391(9th Cir.

1977)Warrior Towbigbee Transport Co. v M/V Nan

Fung, 695 F2d 1294 (11th Cir. 1983) and Farberwerke

Hoeschst A.G. vM/V "Don Hicky," 598 F2d 795(Sth

Cir. 1979). The rules of summary judgment are not

only very clear, they are there to protect a party's

fundamental, constitutional right, guaranteed by the

Seventh Amendment, for a jury trial of the facts. Both

the district court, and the Ninth Circuit, violated

fundamental and important law, regardinng the absolute

prohhibition of making findings of fact that are disputed

or unframed. a0

6. The Ninth Circuit refused to accept evidence into

record which would have overturned their decision

in Wilson v Navy.

The Ninth based its opinion regarding motions to

compel mental examinations on this Court's opinion in

Sclagenhauf v Holder, 379 US 104 (1964) which

concludes a party must "affirmatively put into issue his

own mental or physical condition". The Ninth Circuit's

decision in Wilson v Navy stated, Wilson argues that he

has not alleged severe emotional distress because he

agreed to strike the word 'severe' from his emotional

distress claim in his complaint. However, the record

contains no stipulation regarding this agreement". On

petition for rehearing, petitioner provided evidence

demonstrating agreement from the complaint in a

request for judicial notice.(Lodging Ex 100) The :

original three judge panel denied the request for judicial

notice. See (Lodging exh 100). Moreover, a panel

member circulated a memo that contained inapposite

conclusions regarding the

evidence in petitioner's request for rehearing (Lodging

101) ;

Conclusion

For all the foregoing reasons, Petitioner respectfully

requests that this court grant this petition.

Dated: September 29, 20002

LAW OFFICES OF DAVID BURKENROAR..

By:

David Burkenroad

Attorney for Petitioner

28 U.S. C. 1346. United States as defendant

(a) the district court shall have a result jurisdiction,

concurrent with the United States Court of Federal

Claims, of:

(2) any other civil action or claim against the United

States, not exceeding $10,000 in amount, founded

in either upon the Constitution, or any act of

Congress, or any regulation of an executive

department, or upon any express or implied contract

with the United States, or for liquidated or and

liquidated damages in cases not sounding in tort,

except the district court's shall have jurisdiction of

any civil action or claim against the United States

founded upon any express or implied contract with

the United States or for liquidated or and liquidated

damages in cases not sounding in tort address

subject to sections 8 (g) (1) and 10 (a) (1) of the

contract disputes Act of 1978. For the purpose of

this paragraph, and express or implied contract with

the Army and Air Force Exchange Service, Navy

exchanges, Marine Corps exchanges, coastguard

exchanges, or exchange councils of the National

Aeronautics and Space Administration show the

considered an express or implied contract with of

the United States.

(d) the district court's shall have original jurisdiction

of any civil action against the United States

provided in Section 6226, 6228 (a), 7426, 47428 (in

the case of the added States District Court where the

District of Columbia) or section 7429 of the Internal

Revenue Code of 1986.

arp. ExA r°!

28 U.S.C 2679. Exclusiveness of remedy

(b) (1) The remedy against the United States

provided by sections 1346 (b) and 2672 of this title

for injury or loss of property, or personal injury or

death are rising or resulting from the negligent or

wrongful act or omission of any employee of the

government will acting within the scope of his

office or employment is exclusive of any other civil

action or proceeding for money damages by reason

of the same subject matter against the employees

whose act or omission gave rise to the claim or

against the estate of such employees. Any other

civil action or proceeding for money damages

arising ana out of or relating to the same subject

matter against the employee or the employee's estate

is precluded without regard to when the act or

omission occurred

28 USC 2679. Exclusiveness of remedy

(d) (1) upon certification by the attorney general that

the defendant employee was acting within the scope

of his office or employment at the time of the

incident out of which the claim arose, in the civil

action or proceeding commenced upon such claim

in United States District Court shall be deemed an

action against the United States under the provisions

of this title and all references thereto, and United _

States shall be substituted as the party defendant.

(2) upon certification by the attorney general that

the defendant employee was acting within the scope

of his office or employment at the time of the

incident of which the claim arose, any civil action or

proceeding commenced upon such claim in state

court shall be removed without bond at anytime

before trial by the Attorney-General to the District

Court of the United States for the District and

Division embracing the place in which the action or

proceeding is pending. Such action or proceeding

shall be deemed to be an action or proceeding

brought against the United States under the

provisions of this title and all references thereto, and

United States shall be substituted as the party

defendant. This certification of the Attorney

General shall conclusively establish scope of office

or employment for purposes of removal.

Rep. Ey h p-3

29 USC 701. Findings; purpose, Policy

(a) findings

Congress finds that-

(4) increased employment of individuals with

disabilities can be achieved through implementation

of statewide workforce investment systems under

title 1 of the work force investment act of 1998 (29

U.S. see a 2801 X SEC] that provide meaningful

and effective protest the patient for individuals with

disabilities in work force investment activities and

activities carried out under the vocational

rehabilitation program established under title 1, and

through the provision of Independent Living

‘~ Services, support services, and meaningful

opportunities for employment in integrated work

settings through the provision of reasonable

accommodations;

Spe. A py

Not For Publication Filed December 17, 2001

United States Court of Appeals Cathy A. Catterson

For the Ninth Circuit Clerk, U.S. Court of Appeals

Robert C. Wilson, No. 00-55281

Plaintiff-Appellant DCNo. CP-98-2474-ABC

V.

John Dalton, Secretary of

Navy; United States Navy,

Defendants-Appellees.

Appeal from the United States District Court

Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted September 14th, 2001

Pasadena, CA.

Before: B Fletcher,TG Nelson, &Berzon,Cir.Judges

Robert C. Wilson (Wilson) sued the Navy under the

Rehabilitation Act.1. He appeals the District

Court's partial summary judgment for the Navy,

arguing that he raised a genuine issue of material

fact as to whether the Navy reasonably

accommodated his carpal tunnel syndrome. Wilson

also appeals the District Court's denial of his motion

for a new trial on his retaliation claim, arguing that

the district court erred in ordering him to undergo a

mental examination. We have jurisdiction pursuant

to 28 U.S.C. 1291 and affirm the District Court.

This disposition is not appropriate for publication

and may not be cited to or by the courts of this

circuit except as may provided by Ninth Circuit

Rule 36-3

1 29 USC 701-961 (1994 & Supp.IV 1998).

App Ex. r-!

Wilson's likens this case to Barnett v. U.S. Air,

Inc.,2 and claims that the Navy did not act in good

faith. 3. However, unlike the plaintiff in Barnett,

Wilson produced no evidence that the Navy failed

to seek a dialogue or communicate with Wilson,

otherwise ignored him, or summarily rejected his

accommodation requests without offering

alternatives. 4. In contrast, the Navy produce

evidence that it had met with Wilson, requested

information about his conditions and limitations,

asked him what he wanted, considered his requests,

and offered and discussed alternatives. 5.

Wilson contends however, that the Navy did not act

in good faith because the Navy failed to provide

him with some of the equipment he requested to

accommodate his carpal tunnel syndrome, delayed

in providing other equipment, and provided

unreliable secretarial and transcription support

services. However, the Navy produce evidence that

these incidents were caused by innocent mistakes or

decisions that are reasonable under the

circumstances, and Wilson offered no contrary

evidence.

2 228 F3d 1105(9thh Cir. 2000),cert. granted, 121

S.Ct. 1600 (2001).Certiorari was granted on a

question irrelevant to this case.See 121S.Ct. @1600

3 See Barnett, 228,F3d at 1116(holding that an

employer cannot prevail at summary judgment if

there is a genuine dispute as to whether the

employer engaged in good faith in the interactive

process).

4 See id. at 1116-17

5 See id at 1115.

fpp- Cx. t Pr’ 2

Wilson also cites the verbal abuse and humiliation

by his supervisors and a compensation claims

administrator. The record reveals that the incidence

in question might be more accurately characterized

as interpersonal friction. In light of Wilson's failure

to provide any other evidence of bad faith, these

incidents are not enough to raise a genuine issue as

to whether the Navy acted in good faith. Wilson

also argues that the Navy failed to reasonably

accommodate him by refusing to provide him with a-

specific office equipment he requested. The

Rehabilitation Act's mandate to provide reasonable

accommodations does not require the Navy to

provide Wilson with a specific accommodations he

requests, however. 6. Furthermore, Wilson does not

dispute that the Navy provided some

accommodations and has produced no evidence

tending to show that the Navy's accommodations

were not reasonable.

Viewing the record in the light most favorable to

Wilson,7 he has failed to set forth a specific facts

showing that there is a genuine issue for trial

regarding the Navy's a good faith or the reason most

of the Navy's accommodations of his disability. 8.

6 See id. at 1113 n.4.

7 See McAlindin v. County of San Diego, 192F3d

1226,1232 (9th Cir. 1999),cert.denied, 530US 1243

(2000)

8 See Far Out Productions, Inc. v. Oskar, 247 F.3d

986,997 (9th Cir.2001);Fed R. Civ. P. 56(e)

Rep Ex. ip3

Wilson's factually unsupported arguments are not

sufficient to raise a genuine issue of material fact. 9.

We affirm the District Court's partial summary

judgment for the Navy.

Il.

After a jury verdict for the Navy on his retaliation

claim, Wilson moved for a new trial, basing his

motion on the district court's refusal to set aside a

magistrate judge's order compelling Wilson to

undergo a mental examination. We conclude that

the district court did not abuse its discretion in

denying Wilson's motion. 10.

Wilson expressly alleged "Severe emotional distress

and mental anguish" in his complaint. 11.

9 See United States v. Northern Telecom, Inc.,52

F3d 810,815 (9th Cir. 1995)(citing Celotex

Corp.v.Catrett,4477 U.S.317,323-24 (1986)

10 See Unocal Corp. v. United States, 222 F3d

528,534 (9th Cir.2000)("we review for abuse of

discretion the district court'ss denial of Metrolink's

motion for a new trial.")

11 Wilson argues that he has not alleged severe

emotional distress because he "agreed" to strike the

word "severe" from his emotional distress claim in

his complaint. However, the record contains no

stipulation regardingg this "agreement,"and the

complaint was not amended to strike the word

"severe" or reduce the emotional distress damages

Wilson sought.

Arp- Ex. | p-4

In depositions, Wilson gave emotional descriptions

of all-lasting and significant emotional distress,

which, even if not explicit labeled as such, amount

to allegations of severe emotional injury. Finally,

Wilson sought a substantial amount in emotional

distress damages. These considerations provide

sufficient grounds per finding that Wilson has

placed his mental condition "In controversy" and

that there was a "Good cause" for the examination.

12. Thus, the district court did not make a clear

error in judgment in upholding the magistrate

judge's mental examination order 13. Accordingly,

the district court did not abuse its discretion in

denying Wilson's' motion for a new trial 14.

Affirmed.

12 See Turner v. Imperial Stores, 161 F.R.D.

899,91-98(S.D. Cal. 1995)(collecting cases and

identifying the grounds for mental examinations );

Ford v.Contra Costa County, 179 F.R.D. 579,579-

80(N.D. Cal. 1998) (listing grounds for mental

examinations);see also Sclagenhauf v. Holder, 379

U.S. 104,116-22(!964);Fed.R.Civ.P.35(a).

13 See Securities and Exchange Comm'n v.

Coldicutt, 258 F3d 939,941(9th Ccir. 2001).

14 See Unocal Corp.,222F3d at 534

hep. Cw. f->

This constitutes Notice Filed June 28,1999

of Entry as required by Clerk, U.S. District Court

FRCP, Rule 77(d) Central District of California

United States District Court

Central District of California

Robert C, Wilson, Case No.CV 98-2474ABC(CTx)

Plaintiff Order re: Defendant Dalton's

v. Motion for Partial

John v. Dalton, Summary Judgment

Secretary of Navy,

Defendants

Defendant John Dalton's motion for partial

summary judgment came on regularly for hearing

before this court on June 28, 1999. After reviewing

the material submitted by the parties, argument of

counsel, in the case file, it is hereby ordered

defendants motion is granted in part and denied in

part. :

Defendant John Dalton ("Dalton" or "Defendant")

brings this motion for partial summary judgment

against plaintiff Robert C. Wilson ("Plaintiff or

"Wilson") asserting that plaintiff cannot present any

evidence that he sustained disability discrimination

or retaliation in the termination of his employment

with the Department of the Navy, the other

defendants named in this action. Defended further

argues that plaintiff cannot present any evidence

warranting reversal of the decision by the Merit

Systems Protection Board, which affirmed plaintiff's

termination.

I. Actual and Procedural Background

App: ER. p.l

As an electronics engineer for the Navy, Wilson's

job primarily involved planning and preparing

documents,

schedules, budgets, and reports in support of

assigned weapons support equipment in a timely,

efficient, and responsive manner. Wilson separate

statement of facts ("Wilson sep. stmt. ") 2. Part of

plaintiff's job that involved making both oral and

technical presentations. Wilson sep. stmt. 3. On or

about August ,1991, doctors diagnosed Wilson with

carpal tunnel syndrome. Wilson filed a worker's

compensation claim with the United States

Department of Labor, office of workers

compensation programs ("0 W C P") on September

30, 1991, for cumulative soft tissue stress. Wilson

sep stmt. 4. Mary Wedel ("Wedel "), of the human

resources department at Point Mugu, the military

base where plaintiff worked, served as a the

administrator for Wilson's compensation claim.

Wilson sep. stmt 5.

Wedel received several medical reports related to

plaintiff's worker's compensation claim. Wilson

sep. stmt. 6. The first medical reports were from

plaintiff's physician, Dr. Domingo- Foraste, who

diagnosed Wilson with wrist pain and possible

posture problems when working on the computer.

Wilson sep. stmt. 6.

On September 30th, 1991, the Occupational Safety

and Health Office ("OSH) conducted an ergonomic

work site evaluation of plaintiff's workstation.

Wilson sep. stmt. 8. OSH concluded that plaintiff's

chair was inappropriate and that his table was too

high given his medical condition. Wilson sep. stmt.

8. OSH's other findings concerned plaintiff's

posture while at the computer. Wilson sep. stmt. 8.

Wedel sent the OSH evaluation to plaintiff's

supervisor, who at that time was Sam Drake

("Drake"). Wilson sep. stmt 9.

tere. &*: 2A pr

An ergonomically appropriate chair was ordered at

that time. Wilson sep stmt 9. In October 1991,

plaintiff provided Wedel a letter from his physical

therapist, Bobbie Johnson ("Johnson"). Wilson sep

stmt 10. The letter included several

recommendations describing what was needed for

an ergonomically designed workstation for plaintiff.

Wilson sep stmt 10. After receiving the letter, the

OSH Office conducted a second ergonomics survey

of plaintiff's work area and videotaped it. Wilson

sep stmt 11. After the second ergonomic survey,

Johnson recommended the following workstation

adjustments:1) an adjustable ergonomic chair

without arms; 2) a wrist pad; and 3) a copyholder.

Wilson sep stmt 11.

On November 4, 1991, Dr. Domingo-Foraste

provided a work restriction evaluation stating that

Wilson needed to be excused from work from

November 4, 1991 until November 18, 1991.

Wilson sep stmt.7. The defendants granted this

request. Wilson sep stmt 7. On December 2, 1991,

Wedel receive a facsimile from Dr. Domingo

Foraste, placing plaintiff on temporary total

disability until December 16, 1991, for a total of 80

hours. Wilson sep stmt 12. When Wilson returned

to work on December 17, 1991, Dr. Domingo

Foraste provided additional work restrictions: no

computer typing or reproduced motion ; writing to

include only short notes; seating at a-comfortable

level (26 to 27 in. from the ground to the top of the

desk); lifting to be kept at a minimum, no more than

2 to 3 pounds at time; and plaintiff's wrist should be

kept in a natural position whenever possible.

Wilson sep stmt 12. in response, defense agreed to

provide plaintiff an ergonomic chair which had

already been ordered, relieve plaintiff of typing,

provide seating at a comfortable level (26 to 27 in.

from the ground to the desk), |

lifting to be kept at a minimum, no more than two to

three pounds at a time. Wilson sep stmt 13.

Additionally, the defendants offered plaintiff a light

duty position, based on the restrictions management

agreed to follow, not to exceed January 10, 1992.

Wilson sep stmt 13. Plaintiff accepted this position,

with the proviso that activity caused him pain or

discomfort if be immediately stop upon notification

of his supervisors.(1)

On January 6, 1992, with the end of plaintiff's light _

duty approaching, Wedel contacted Dr. Domingo

Foraste's office to obtain updated medical

information regarding plaintiff's Medical

restrictions. Wilson sep stmt 14. Wedel learned that

plaintiff had an appointment with Dr. Michael

Began ("Began"). Wilson sep stmt 15. Shortly

thereafter, Wedel attempted to obtain information

from the Doctor Began's office regarding plaintiff's

medical restrictions. Wilson sep stmt 16.

Defendants extended plaintiff's light duty job offer

only until February 14, 1992. Wilson sep stmt 17.

Plaintiff accepted this offer, with comments.

Wilson sep stmt 17. On January 23, 1992, Wedel's

Office contacted Timothy Dalstrom OWCP claims

examiner, regarding plaintiff's claim. Wilson sep

stmt 18. Wedel learned that this time that the

OWCP approved plaintiff's change in treating

physicians from Dr. Domingo Foraste to Dr. Dennis

Phelps ("Phelps"). Wilson sep stmt 18. On January

27, 1992, defendants extended plaintiff's light duty

job offer for additional time until March 31, 1992.

Wilson sep stmt 19. Plaintiff declined this offer.

Wilson sep stmt 19.

(1) In December 1991, a doctor recommended that Wilson

seek psychiatric treatment. Wilson depo. at 90. At least one

other doctor also recommended psychiatric intervention. Id at

91-92. A vp. Ex.29.7

Defendants assert that because the plaintiff declined

the light duty offer, which the agency believed was

suitable work, pursuant to OWCP Regulations,

Wedel informed the OWCP and requested a denial

of plaintiff's workers' compensation benefits.

Wilson sep stmt 20. This letter included a list of

accommodations defendant had made, including

relieving plaintiff of typing requirements, ordering a

new ergonomic chair (because the original order

placed on October 7, 1991, had been lost)(2); in lieu

of a Deskomatic(3),constructing a temporary 3 by 4

ft. copyholder as a temporary measure until a

permanent copyholder could be made. Wilson sep

stmt 21. Notwithstanding defendants'

recommendation 0W CP accepted plaintiff's claim

for bilateral carpal tunnel syndrome. Wilson sep

stmt 22. On March 27, 1992 Wedel's office

received a letter from Dr. Phelps providing further

medical restrictions for plaintiff. Specifically, Dr.

Phelps opined that plaintiff should not engage in

continuous or repetitious activities with either hand,

perform data entry, type, or write for more than two

to three minutes at a time.

Dr. Phelps also recommended that plaintiff be

allowed to dictate his work assignments whenever

possible Wilson sep stmt 22.

In response to Dr. Phelps letter, defendants provided

plaintiff some transcription support. Wilson sep

stmt 23.

(2)Plaintiff received the chair some time shortly after Wedel

sent the letter to OWCP. Wilson sep stmt 11.

(3) A deskomatic is a desk of heavy-duty steel construction

with fully adjustable height, shallow drawers and a large work

surface. Wilson sep stmt 25. hep. Ex.2 p- >

Pa

In addition, plaintiff and management discussed the

possibility of obtaining dictation equipment to assist

plaintiff. Wilson sep stmt 24. On May 27, 1992,

Wedel will sent a memorandum to Drake indicating

that the purchase of a dictating machine should be

held in abeyance until Dr. Phelps provided further

clarification of his recommendations. Wilson sep

stmt 24. Wedel also explored the possibility of

providing plaintiff a deskomatic. Considering that

Dr. Phelps had stated that the accommodations

already provided had been beneficial to the

lessening or control of plaintiff's symptoms, that

plaintiff's request would necessitate the purchase of

another ergonomic chair, and the deskomatic was

better suited for a person in the field of drafting or

drawing, Wedel denied plaintiff's request. Wilson

sep stmt 26. Plaintiff contends, however, that two

other non disabled engineers in his office had the

deskomatics. Wilson supp decl 42. On July 21,

1992, Wedel's office received a letter from the

OWCP in Washington D.C. requesting that

defendants review their deskomatic decision.

Wilson sep stmt 26, Wedel decl 25, Exh S.

However after sending the issue to the OSH for

review and investigation, the OSH concluded

plaintiff's work stand was similar to the deskomatic,

and ultimately recommended plaintiff's request be

denied. Wilson sep stmt 27. On August 27, 1992,

defendants updated plaintiff's light duty job offer to

cover the period of September 30, 1992. Wilson

sep stmt 28. Plaintiff accepted the job, with

comments. Wilson sep stmt 28. In an attempt to

clarify plaintiff's work restrictions, Wedel

forwarded a letter to plaintiff's treating physician,

Dr. Phelps. Wilson sep stmt 29. Dr. Phelps’

response on January 28, 1993 included nearly

identical work restrictions as he had provided on

App Ex 2. pb

I TS SY ee pesensenesnsnneervereeenereereereeetinss-

March 27, 1992, but also suggested a professional

consultation of plaintiff's workspace be conducted.

Wilson sep stmt 29. Wedel decided not to use the

professional Phelps recommended but contacted

Skip Olson, a physical therapist on contract to the

Naval Air Systems Command

(NAVAIRSYSCOM), who provided detailed

ergonomics training to NAVAIRSYSCOM,

activities. Wilson sep stmt 30. Olson opined that

Wilson's current accommodations were sufficient,

but recommended that plaintiff could benefit from a

foam lumbar roll and either a shoulder rest,

headrest, or speaker phone. Wilson sep stmt 30.

Olson also noted that the document holder was too

high for marking documents while sitting. Wilson

sep stmt 30. On January 18, 1994, plaintiff filed a

complaint of discrimination based on his disability

and prior EEOC activity. Wilson supp decl 16. In

total, plaintiff filed seven complaints between

January 1994 and April 1995. Wilson supp decl 16-

22. Once again, in February 1994, plaintiff changed

his treating physician to Dr. Gerry Blacker

("Blacker").4 Wilson sep stmt 31.

4. On November 8th, 1993, Dr. Phelps and released Wilson

from his medical care by letter. See Wilson sep stmt 31. ("We

have made every effort to give you call the medical care and to

write you with documentation of your condition and the

recommendations we have made for management of the carpal

tunnel syndrome. I have person spent a substantial amount of

time trying to satisfy your requests and demands. My office

staff has also spent a great deal of time trying to help you. I

can't recall another patient for whom we have made a greater

effort to assist in matters of documentation, workstation

modification recommendations, etc. [] it appears that our

efforts are not satisfactory to you. You wish to obtain a

disability retirement from the Department of Labor, and I'm

not able to assist you additionally in that effort. There's

nothing to be gained by further discussion of that issue, and I

could no longer provide treatment for you under the

circumstances. ") Nep- Er.2 p/7

Wedel subsequently requested updated medical

limitations from Dr. Blacker. Wilson sep stmt 31.

Blacker responded that plaintiff could perform

computer work, typing, and handwriting, provided

that the work was not to continuous or repetitive,

and plaintiff could take rest breaks. Wilson sep

stmt 31.

At about this time, plaintiff began reporting to his

new supervisor Wil Bertelt ("Bertelt"), rather than

Drake. Wilson sep stmt 32. Bertelt proposed a light ..

duty job description, based on Dr. Blacker's

restrictions. Wilson sep stmt 33. Plaintiff indicated

that he would respond to the light do the job offer

only if and when he was provided with Dr. Blacker's

March 23rd, 1994 restriction letter. Wilson's

separate statement 33. Although Bertelt has set a

deadline of April Ist, 1994, for plaintiff to accept

the light duty, plaintiff not except until June 10th,

1994. Wilson sep stmt 34. Based on reports from

plaintiff's supervisor, the defendants had been

monitoring plaintiff's performance. By February

1994, plaintiff underwent a series of the evaluation

reviews known as performance improvement

periods. In addition, on April 25th, 1994 plaintiff

underwent a physical fitness for duty examination

initiated by plaintiff's management. Wilson sep

stmt 34. The investigation was conducted by Dr.

Patrick Kong ("Kong"), a neurologist. Wilson

separate statement 34. Dr. Paul's findings indicated

that plaintiff did not have any neurological

dysfunction. Wilson sep stmt 34. Plaintiff's treating

physician, Dr. Blacker, agreed with several of Dr,'s

conclusions. Wilson sep stmt 35.

At the same time that defendants were more closely

monitoring plaintiff's performance, they were also

continuing to address plaintiff's accommodation

requests. Agp: Ey 2. Re g

As early as October 1993, and certainly by April

1994, defendants provided plaintiff dictation

services. See Wilson decl 13; Wedel decl exhibit

BB at 113. In August 1994, defendants provided

plaintiff voice-activated computer software. Wilson

sep stmt 37. Further, in December 1994, defendant

supplied defendant with graphic software designed

to interface with his voice control computer and the

services of a graphics assistant. Wilson decl 16, 18.

Notwithstanding these accommodations, defendants

found that plaintiff failed to perform to the fully

satisfactory level. Wilson sep stmt 38.

Accordingly, in April 1995, defendants terminated

Wilson based on unsatisfactory job performance for

over one year. Wilson sep stmt 38. Plaintiff

appealed his termination to the Merit Systems

Protection Board ("MSPB"). Wilson sep stmt 38.

On July 21, 1997, after an evidentiary hearing, the

administrative law judge for the MSPB upheld the

termination. Wilson sep stmt 38. Plaintiff then

appealed the A L J's decision to the full MSPB

board, which affirmed the findings on February 18,

1998. Wilson sep stmt 38. Acting pro se, on April

3, 1998, Wilson filed a complaint against

defendants John Dalton, Secretary of the Navy and

the Department of the Navy. On May 24, 1999,

defendant Dalton filed a motion for partial summary

judgment regarding plaintiff's termination claims

only. On June 7, 1999, plaintiff, who is now

represent by counsel, filed his opposition.

Defendant Dalton filed a reply on June 14, 1999. a

II. Discussion

A. Summary judgment standard

It is the burden of the party who moved for

App. bx 2 97

summary judgment to establish that there is "No

genuine issue of material fact, and that the moving

party is entitled to summary judgment as a matter of

law. " Fed. R. Civ. P. 56 (c); British Airways Board

verses Boeing Co., 585 F 2 D 946, 951 (9th Circuit ~

1978), cert denied, 440 U. S. 981 (1979). If the

moving party has the burden of proof at trial

(plaintiff on claim for relief, or the defendant on

affirmativedefense, the moving party must make a

showing sufficient for the court to hold that no

reasonable trier of fact could find other than for the

moving party Calderone vs. United States, 799 F2d

254, 259 (6th Cir 1986) citing W Schwarzer,

summary judgment under the federal rules: defining

genuine issues of material fact, 99 FRD 465, 487-88

(1984) This means that, if the moving party has the

burden of proof at trial a party must establish

beyond peradventure all the essential elements of

the claim or defense to warrant judgment in that

party's favor Fontenot vs' Upjohn Co. 780 F. 2 d

1190, 1194 (Sth Cir 1986). Furthermore the court

must view the evidence presented to establish these

elements "through the prism of a substantive

evidentiary burden. " Anderson vs Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986). If the opponent has

the burden of proof at the trial then the moving

party has no burden to negate the opponents claim.

Celotex Corp. vs. Catrett, 477 U.S.. 317, 323

(1986). In other words, the moving party does not

have the burden to produce any evidence showing

the absence of a genuine issue of material fact. Id at

325. "Instead,... The burden of the moving party

may be discharged by showing--if that is, pointing

Out to the district court--that there is an absence of

evidence to support the non moving party's case. "

id. Once the moving party satisfies this additional

burden, "An adverse party may not rest upon the

App. ext pp b©

mere allegation to denials of the adverse party's

pleadings.. [T]he adverse party's response. .must

set forth specific facts showing that there's a

genuine issue for trial. " Fed R Civ P 56 (e)

(emphasis added). A "Genuine issue" of material

fact exist only when the non moving party makes a

sufficient showing to establish an essential element

to that party's case, and on which that party would

bear the burden of proof at trial. Celotex, 477 U.S.

at 322-323. "The mere existence of a scintilla of

evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which a

reasonable jury could reasonably find for the

plaintiff. " Anderson, 477 U.S. at 252. The

evidence of the non movement is to be believed,

and all the justifiable inferences are to be drawn in

his favor. Id at 248; Griffith vs. Utah Power and

Light Co., 226 F. 2d 661, 669 (9th Cir 1955).

B. Reasonable accommodation claim

1. Legal standard for the 501 claim for reasonable

accommodation.

Plaintiff brings his claims under 501 of the 1973

Rehabilitation Act, 29 U. S. C. 701-961 or (the

"Act"). In 1978, on Congress amended the Act to

permit a private right of action for federal

employees by enacting the 505 (a) (1), 29 U.S.C. -

794 a (a) (1), which provided that the rights and

remedies available under title 7 of the Civil Rights

Act of 1964, 42 U.S. C. 2000 the-16, were

available to a person complaining of discrimination

in violation of 501, 29 U. S. C. 791 (West Supp

1998). See Boyd vs. United States Postal Service,

752 F. 2 d 410, 413 (9th circuit. 1985). Under the

statute federal employers are required to "make

reasonable accommodations where possible, it was

clearly implying that a more active and extensive

effort than "nondiscrimination" must be made to

eliminate barriers to employment of the

handicapped in federal agencies. . Mantolete v

Bolger, 767 F2d 1416, 1422 (9th Cir 1985) (internal

quotation omitted). To allege a prime facie case of

discrimination under the Rehabilitation Act, the

plaintiff must show that 1) he was a qualified

disabled individual at the time he was terminated,

and 2) "That he could perform his duty if reasonable

accommodations are made. See Buckingham vs.

United States, 998 F. 2 d 735, 739-40 (9th Circuit

1993); Mantolete, 767 F. 2 d at 1423-24. The

burden is on plaintiff to show that he is "

qualified," meaning that with the without reason”

accommodation, he/she can perform the essential

functions of his job. Mantolete v. Bolger, 767 F2 d

1416, 1423 (9th circuit. 1985). Once a plaintiff has

presented a "Facial showing that reasonable

accommodation is possible," the burden shifts to the

defendant to show that it has reasonably

accommodated plaintiff or that such

accommodation is not possible. Id. (internal

quotation submitted) "quoting Arneson v Heckler

879 F. 2 d 393, 396 (8th cir. 1989)). In determining

whether a defendant has satisfied his or her burden,

the act expressly permits the disaccord to the "Take

into account the reasonableness of the cost of any

necessary workplace accommodation" for violations

of 5:29 USC 7948 (a) (1); Carter vs: Bennett, 840 F.

2 d 63, 65 (D.C. Circuit 1988).

The parties do not appear to dispute that

plaintiff's carpal tunnel syndrome means that he is a

disabled person under the act.(5).

5. Although the parties to not raise this issue, the court noted

that the most recent medical examination report provided by

plaintiff suggests that as of April 25, 1994, nearly a year

before his termination, plantiff did not display objective signs

App. Exid-p. ie

Nor is it disputed that plaintiff is a federal

employee. Moreover, neither party contends that

plaintiff ' s condition was not amenable to

reasonable accommodation while he worked for the

Navy. The nature and requirements of plaintiff's job

as an electrical engineer were similarly clearly

stated and agreed upon. All of plaintiff's doctors

and physical therapists stated that plaintiff could

work, provided certain accommodations were made.

Given these points of agreement, the central issues

with the court to determine are 1) whether plaintiff

was qualified, with the without accommodation 2)

whether defendants reasonably accommodated

plaintiff before terminating him.

2. Analysis

a.Questions of fact exist as to whether plaintiff was

"Qualified Employee" when he was terminated.

Although significant evidence exist as to plaintiff's

inability to perform if his job because of reasons

having nothing to do with his disability, the court

finds the plaintiff has raised issues of fact which

preclude the court from finding that he was

unqualified to perform his job, with or without

accommodation,at the time he was terminated. As

early as November 17th, 1992, plant received

notification of unacceptable performance.

5(cont'd) of carpal tunnel syndrome. See supra note 14.

Plaintiff submits the Declaration of Michael Roback which

states the plaintiff is totally disabled for purposes of disability

retirement and Social Security benefits. However, the court

sustains defendant's objection to this evidence because it

purports to provide expert testimony, but fails to set forth Dr.

Roback's expert qualifications. See Fed R of Evid 7 02. In

addition, Dr. Roebuck's declaration fails to provide any factual

bases for the medical opinion asserted.

Agpoex,2 pf, 13

See Wilson decl 24 and Exh 4 at 2, attached thereto.

Plaintiff does not dispute the notice's allegation that

plaintiff submitted one of his assignments to the

Texas Instrument contractor to complete, in "an

apparent attempt to pass someone else's work off as

"his" own. Id. The notification also stated that

plaintiff failed to timely complete several

assignments or reworks of other assignments. Id.

Even as of the time of the evaluation several months

after the initial two week deadline had elapsed

plaintiff had yet to turn in any of these assignments.

Id. Plaintiff's explanations for his failure to perform

in large part did not stem from his disability in the

first place, although a disability could certainly

explain some delay in the performance or reduction

in professional quality, a plaintiff cannot be

considered "qualified" to perform the essential

elements of a job if he fails to turn in assignments

altogether. Secondly, to the extent plaintiff avers he

cannot perform because of his inability thumb

through a manual book, there is no indication that

plaintiff was prevented from performing such

activity altogether. Instead, Dr. Phelps report, on

which plantiff relies for this contention, merely

states that plantiff should avoid continuous or

repetitious activities with either hand. See Wedel

dec. 21 and Exh Q. Yet the description of Plaintiff's

task assignment provides that plaintiff's position

requires thumbing an average of no more than one

minute continuously. See Wedel decl, Exh Y at

106. Considering that Drake took plaintiff's

mobility difficulties into account when setting

plaintiff's deadlines, and even allowing that plaintiff

may still have needed some extra time to finish

projects beyond the due date, plaintiff's difficulties

which page turning cannot explain his failure to

perform. Rapyee.> po '4

For similar reasons, plaintiff's complaint regarding

lack of secretarial help cannot justify his failure to

perform. For similar reasons, plaintiff does not

dispute the fact that he was provided secretarial

support so that he would not have to type his

reports. Wilson decl 7. Although Wilson asserts

that there were certain restrictions with regard to

obtaining such help, plaintiff does not provide any

evidence that he had difficulty obtaining such help

with regard to these projects which prevented his

performance. . As a result of this negative

evaluation, plaintiff was put on a 90 day

performance improvement plan.(6)

Although the precise dates are unclear, it appears

that in September 1993, plaintiff received a below

satisfactory evaluation of his performance during

this period. Wilson dec! 26 and exh. 6 attached

thereto. The review, which was approved by the

head of the support equipment division, including

comments that plaintiff "Cannot be relied upon to

do his assigned job, ""Only does enough to get by,"

and that his work and " overall work assignments

are minimally acceptable in quantity and quality. "

id.

(6) plaintiff asserts this performance improvement plan was

"set aside" by the human-resources office because it had not

approved plaintiff's placement on a PIP. Although the court

accepts, as it must at summary judgment, plaintiff's declaration

as sufficient proof that the PIP was set aside, plaintiff's

statement as to the reason for the set aside (i.e. because Human

Resources had not approved the PIP), it is inadmissible

hearsay.

No action appears to have been taken on the basis of

plaintiff's original negative performance evaluation.

In February 1994, the defendants put plaintiff on a

formal performance improvement period ("PIP")

which lasted for 120 days. ah Ex.2¢.6

Wilson decl 29 and Exh 7 attached thereto. The PIP

included tend past assignments which were clearly

outlined in the memorandum which plaintiff

received. Id. During this period, the review panel

provided plaintiffs assistance in completing the

various assignments and then evaluated plaintiff's

performance. At first, plaintiff received mixed

reviews, including some highly satisfactory

evaluations. See Wilson decl 29 and Exh 8 attached

thereto.

However, as the assignments progressed,

plaintiff's evaluation fell to the satisfactory or below

satisfactory range from all evaluators. (7). Id and

exhibit 9 att'd thereto. Plaintiff concedes that the

remainder of the assignments were not performed.

Id. .

Plaintiff testifies that he could not execute the bulk

of the assignments because they depended upon the

third assignment, which plaintiff did not complete.

Id. Plaintiff offered no explanation, however, for

his failure to complete the third assignment. Id. To

the extent that plaintiff offers any explanation for

his failure to turn in reports, Plaintiff asserts that he

did not have specifications of the final task until the

near the end of the PIP, and that he was hampered

by the unavailability of the voice control computer

and a deskomatic. Although plaintiff's disability

could certainly excuse some delay in performance,

it is equally true that the employee cannot be

considered "Qualified" under the Rehabilitation Act

when he failed to turn in any work.

(7) Apparently, Bertelt provided plaintiff a detailed

memorandum as to the reasons he did not properly satisfy the

PIP. See Wilson deci and Exh 11 attached thereto. However,

the court could not find the memorandum, but rather only an

abbreviated agenda by Bertelt which referred to the August 24,

1994 evaluation. Ne Arp &«.r plé

See Southeastern Community College vs. Davis,

442 U.S. 397, 406 (1979) (holding that an

“otherwise qualified” employee must be "able to

meet all of this program's requirements in spite of

his handicap").(8)

Even assuming plaintiff's disability would have

caused or contributed to his utter failure to perform,

the court finds that plaintiff's failure did not result

from defendants failure to reasonably accommodate

him. Plaintiff admits that he had Secretary support

during this period, which was all that his doctors

had previously recommended. See Wedel decl.

Exhibits D, E, M,N, and O attached thereto.

Similarly, although defendants did not provide a

desk and Magic, they did use a Magic marker board

to create a three by four foot work service which,

although bulky, could be adjusted from an almost

vertical to horizontal position. Wedel decl exh 0 at

78 (letter from Wilson to claim reviewer describing -

adjustable surface). The Ninth Circuit has held that

"[A] n employer is not required to provide a

disabled employee the most technologically

advanced equipment. " Barnett vs. U.S. Air, Inc.,

157 F. 3 d 744, 751 (Ninth Circuit 1998). Nor is an

employer required to provide every accommodation

a disabled employee may request. See Francis v

Runyon, 98 F. supp 195, 206 (EDNY. 1996)

(quoting Fink vs. New York City Department of

Personnel, 53 F. 3 d 565, 567 (2d Cir 1995)).

(8) Although the term “otherwise qualified" refers to suits

brought under 5 04, rather than 501, which requires plaintiff to

be a “qualified” individual, the terms are defined the same,

except that 5 01 and its regulations impose an explicit

requirement that accommodation of the handicap be

considered in determining a handicapped individuals

qualifications for federal employment. Mantolete, 767 F2d at

1421 ("[T] here is no reason that the 5 01 definition should

lier Some ne OF 304. ..*) Bp. Ee 24.17

"That [the employer] could have provided a

different set of reasonable accommodations or more

accommodations does not establish the the

accommodations provided were unreasonable or

that... additional accommodations were necessary. "

Id. (quoting Misek-Falkoff v IBM Corporation,

854 F Supp 215, 228 (S D NY 1994), affirmed, 60

F.3d 811 (2 d Circuit), cert denied, 516 U.S. 991

(internal citation omitted)).

Following plaintiff's unacceptable evaluation, the

human-resources department formed a "Problem

Solving Team" to develop a corrective course of

action to address plaintiff's performance deficits.

Wilson decl 29 and exh 12A attached thereto. The

problem solving team acknowledged several of

plaintiff's criticisms and noted for instance, that

management should not make each task depended

upon the previous task the team also suggested that

management reconsider plaintiff ' s request for

reassignment to a different supervisor (9) .

At the same time, the largely independent team

recommended that plaintiff need to make every

effort to complete tasks even if all needed data was

not supplied. Id. The team of further stated that it

would be available to plaintiff for consultation in

performing subsequent teak assignments. Id.

(9) A K Rogers, Head of the Weapons Engineering and

Logistics Department, originally considered plaintiff's request

for transfer but determined that plaintiff's stated reasons did

not substantiate reassignment. Based on the problem solving

teams recommendation, reconsideration was given to this _

decision, but because there were no new reasons the provided

for the change, there was no indication that Bertelt was

responsible for plaintiff's performance problems, and Bertelt

was only one of four independent evaluators of appellant's

performance, the agency denied plaintiff's request a second

time. | Arp: &n. 2 pT

Apparently as a result of plaintiff's failure to

complete the PIP satisfactorily, the Navy placed him

on a third PIP plan to permit plaintiff 90 days, from

October 6th, 1994 until January 3rd, 1995, to allow

plaintiff to raise his performance to a minimally

successful level. Wilson supp decl 30 and exh 13

attached thereto. Bertelt consulted with the problem

solving team in formulating the PIP. Id at 60. The

assignment involved converting four computer

software programs from one computer language to

another and then preparing four flow charts based

on these conversions. Wilson supp decl 30, 33.

The PIP also included an explicit guide regarding

expectations for successful completion of the PIP.

Id and exh 13 at 67-73, attached thereto. Bertelt

further stated that he would discuss any changes to

the task assignment the plantiff determined were

necessary. Id at 61. In order to to achieve a

minimally successful rating under the PIP plaintiff

was required to attain an average score of two out of

five total possible points. Wilson supp decl 32, and

exh 13B at 81, attached thereto. 60 percent of

plaintiff's score was based on the technical

compliance and understanding of the report.

Wilson supp decl 32 and exh 13 at 71, att'd thereto.

Another 20 percent of the score considered

plaintiff's timeliness.

The remaining 20% considered the "Overall

quality," which presumably incorporated the

professional apppearance of the reports and other

organizational concerns. Id. Plaintiff's overall

average was 1.5 with only 1 category, weekly status

reports earning him a rating of 2.0. Wilson supp

decl 32 and exh 13B at 83, attached thereto.

Although the report includes certain criticisms

about about the lack of professionalism in plaintiff's

reports, it is clear that the majority of Appx. 2 p07

1g

comments, as was the heaviest weight of the scores,

concern the substantive quality of plaintiff's work, a

point that presumably would not be affected at all

by plaintiff's disability. See generally Wilson supp

dec] 32-34 and exhibit 13B attached thereto.

Notably, plaintiff's projects were "Generally

submitted by deadlines, "an area that which would

more likely be lowered if plaintiff's disability were a

key factor in lowering his performance. (10). Id at

88. Instead the report focuses on several other

examples of plaintiff's failure to fully address or

understand the task at hand.

For instance, the report comments that plaintiff

rarely offer solutions to identify problems,_had

difficulty working individually on projects, usually

restated plan documents rather than providing

original thought to a question, and President

incoherent verbal presentation to his reviewers. Id.

At 84-88. The report concludes in bold that

plaintiff's "Failure to understand the basic

engineering concepts of this task and provide

workable pedicel solutions which can at least

partially function, all of which are expected of a

DP-to engineer, indicates that he is close bracket not

able to perform this critical responsibility of [the]

performance plan. " id at 87. The report further

notes that plaintiff's failure means that his

(10) Notably, on the few assessments presented for the court's

perusal which plaintiff asserts were his higher marks, plaintiff

was awarded a three for timeliness. This was consistently

either the highest or least as high as any other market given.

See Wilson declaration and exhibit 14 at 91 (awarding plaintiff

2.3, 3 and 2.1 for technical compliance). Consider the

plaintiff's overall average was 1.5, Plaintiff's evidence suggests

that the other categories, including technical compliance which

was more heavily weighted, must have been significantly

lower than his timelinness scores, to bring the average down

substantially. Raps Ox. %& p. 20

"Software will have to be completely redone,

resulting in additional cost to the government to

rework this effort," and that plaintiff's performance

indicates that he "cannot accomplish the

fundamental responsibilities of his job. " Id at 89.

In response to this evaluation, plaintiff offers a

myriad of explanations for his deficiencies, none of

which demonstrate that his disability had anything

to do with his termination " Most significantly

plaintiff does not attack the merits of the evaluation.

That is, he presents no evidence which tend to show

that his models or responses were, in fact correct

and the evaluators incorrectly assessed the

substantive aspects of his assignments. Instead,

plaintiff first claims that his problem with one task

was merely a failure to put some characters in the

computer program. It would appear that the

consistency of these errors reflect a lack of

programming knowledge not an inability to type.

See Wilson Decl 32 exh 13B at 86, attached thereto

(noting proper beginning and termination of code

statements are "very basic requirements of

C/ATLAS language. "). Nonetheless, the plaintiff

suggest this error resulted from the fact that he

perform this work with the voice control computer

which had insufficient memory and slow. Wilson

decl at 32. This contention cannot form the basis of

a reasonable accommodation claim. If plaintiff's

mistakes works were truly only due to a computer

program, he could have submitted dictation to

secretaries. See Wilson decl 13 (admitting that by

March or April of 1994, the transcription

arrangement worked satisfactorily"); Wedel decl.

Exh BB at 113 ("It was not until October 15th, 1993

(over a year later) that my new supervisor (B.

Canon) saw to my employer providing me the tape

recorder and the 7 Ex2. pe 2l

!

Secretary with transcription machine"). Defendant

is not required to provide plaintiff with the most

cutting edge machinery in order to have reasonably

accommodated him. See Barnett, 157 F3d at 751.

The fact that defendant did "Bend [] over

backwards" to accommodate plaintiff cannot be

used against it if the unnecessary accommodation

did not fully suit plaintiff's it needs. Terrell vs. U.S.

Air, 132 F. 3 d 61, 626 (11th Circuit 1998) (quoting

Vande Zande v. Wisconsin Department of

Administration, 44 F. 3 d 538 (7th Cir. 1995)

("Employer that ' bends over backwards to

accommodate a disabled worker. .. Must not be

punished for its generosity by being deemed to have

conceded the reasonableness of so far reaching an

accommodation"). Thus, even assuming plaintiff's

mistake was disability-related, plaintiff's failure in

light of defendant's reasonable accommodation

suggested he was not qualified to perform the work.

Plaintiff also notes that the part of the problem was

that the evaluators did not provide him feedback on

his performance until the date of his proposed

removal. However, this assertion is not supported

by plaintiff's own exhibits. First, plaintiff engaged

in extensive discussions with the Steve Stanfeld, a

C/ATLAS programmer, prior to turning in his

assignments. See Wilson supp decl 32 and 14A

attached thereto. Indeed, plaintiff's exhibits reveal

in-depth and detailed programming questions which

Stanfeld provided equally detailed responses. See

exhibit 15 attached to Wilson supp decl.

11 For this reason, plaintiff's statement that he tumed in his

book charts later because he did not receive graphic software

that interfaced with the voice controlled dictation software

until December 1994 does not show defendants failed to

reasonably accommodate him. Moreover, as noted above,

plaintiff generally turned in his assignments on time, thus, his

termination was not based on his lack of timeliness.

AYP. Pwck tr

Stanfeld even provided plaintiff with his home

phone number. Id at 112. Second, although both

the problem solving team and Bertelt, plaintiff's

supervisor, stated that plantiff could ask them

questions, plaintiff does not provide any evidence

that these parties were unresponsive to any feedback

request he made. To the contrary, the evidence

shows that Bertelt responded to plaintiff's inquiries

when Stanfeld was unavailable. Id. At 99.

Notwithstanding that there is significant evidence

the plaintiff was not qualified to perform his job as

an engineer, plaintiff has proffered sufficient

evidence to least raise a question of fact on that

ground. The evaluations plantiff submitted, in

regard his last evaluation, include several positive

evaluations. See Wilson supp decl 29, 32 and Exh.

8,9,14, attached thereto. Most notably, with regard

to the last PIP which led to plaintiff's termination,

Standfeld, the C/ATLAS expert in the group, gave _

plaintiff marks above the minimum passing grade

for his technical compliance and understanding.

See Wilson supp decl, exh 14 at 91-95. Given that

plaintiff has provided some evidence that the other

evaluators judging him did not have sufficient

training in this area,See. Wilson supp decl exh 15 at

99, Stanfeld's marks are particularly relevant in

assessing plaintiff's competency.

In addition, plaintiff attributes some of his

difficulties to the fact that the Navy refused his

request to attend a training seminar on BASIC and

C/ATLAS programming. See Wilson supp decl at

31. One evaluator stated that "Basic programming is

fundamental for any degreed engineer" and was

otherwise easily relearned from the "Text: tutorials,

or on the job training. " See Wilson supp dec! 16 at

i120. However, plaintiff has provided evidence

which creates a question 23 Ryp. Bez. p. 23

of fact as to whether and not this was a case. For

instance, Stanfeld noted the "Relative complexity"

of certain of plaintiff's programming assignments

and that although some of the program involved

"elementary concepts," other parts were "admittedly

arcane. " Wilson supp decl Exh 14 at 92, 94.

Stanfeld also noted that plaintiff's "Technical basic

point. .did grow." Id at 94. Furthermore, plaintiff

has asserted and defendant has not rebutted that no

other engineers at the Navy base at performed

conversions between these two languages. See

Wilson decl at 31. Finally, as noted below with

regard to plaintiff retaliation claim, plaintiff asserts

that several of his evaluaters were biased against

him because of his EEOC complaints and has

provided some evidence to this end. These facts, if

proven true could undermine the tests and

evaluations of plaintiff's performance as a whole.

Thus, despite defendant ' extensive evidence

regarding plaintiff's failure to perform, some

questions remain which preclude the court from

finding as a matter of all that plaintiff was

unqualified.

B. Defendants reasonably accommodated plaintiff

Plaintiff asserts that if his performance was

deficient in any way, it was large because the

defendants failed to reasonably accommodate him.

As detailed above, plaintiff made several requests

over a period of time from November 1991 until

December 1994 for various accommodations based

on recommendations from various doctors, physical

therapists, an ergonomic consultants. In particular,

plaintiff asserts that his failure

to perform adequately results from defendants-

failure to provide certain items suggested by his

physicians and consulting physical therapists

Rep. 2. Pp: 24

by his physicians and consulting physical therapists

including the following: 1) an ergonomically correct

chair,2, a wrist pad, 3) copyholder, 4) the 27 in.

high office desk, 5) an adjustable work surface unit

with 90 degree angle adjustability, deskomatic for

similar device, 6) relief from writing requirements

in greater than two-three minute intervals, 7) proper

secretarial/transcription support, 8) relief from

repetitive motions, particularly in the requirement

for rapid turning the pages or filed materials, 9)

voice-controlled dictation software with sufficient

memory to support, and 10) a graphics assistant or

voice control graphics software.

The court has already provided some discussion as

to how defendants satisfied their burden of

reasonable accommodation with regard to plaintiff's

specific defenses to his performance evaluations.

Nonetheless, the Court expands briefly on

defendants ' accommodations, given the plaintiff has

raised questions of fact about the defendants

evaluations, validity. See discussion supra.

"Determining whether an accommodation is

reasonable depends, to a significant extent, upon

determining whether the employer has acceded to

the disabled employee's request. " Feliberty v.

Kemper Corp., 98 F. 3 d 274, 280 (7th Circuit ij

1996). At the same time, a disabled a employee

"cannot dictate the measure of his employer's duty

to accommodate. " Matzo v Postmaster General,

685 F supp 260, 264 (D DC 1987). Although it is

true that defended did not comply with all of

plaintiff ' s request, the court finds that it made a

good-faith effort to reach a workable, affordable

solutions to plaintiff's physical App. Cx2. pt”

25

problems over a long period of time (12) See

Feliberty, 98 F. 3 d at 280 ("The determination of

reasonable accommodation is a cooperative process

in which both the employer and employee must

make reasonable efforts and exercise good faith. ").

Employers are not bound to exceed to every

physician-supported or individual employee request.

Rather employer's primarily must gather sufficient

information from the employees and from qualified

experts to determine what accommodation to

provide. Buckingham, 998 F. 2 d at 740. In this

case, defendant satisfied this duty. Defense had

three ergonomic consultations and engaged in

constant communication with plaintiff's numerous

doctors. Moreover, OSH conducted its own

investigation into plaintiff's requests.

Defendants not only investigated, they fulfilled the

great majority of plaintiff's numerous requests.

Specifically, over a year before plaintiff's

termination, defendants have provided plaintiff and

ergonomic chair; a 27 in. high computer table; a

work surface which, although balky, plaintiff

concedes was fully adjustable; relief from writing

requirements because he had transcription support

and voice control dictation software; and graphics

assistant, and graphics software that interfaced with

his voice control, software (although not the most

efficient version).

(12) plaintiff has alleged various comments made by Wedel

which suggested shedid not act in good faith. See Wilson dec!

at 1. Yet even assuming Wedel subjectively did not act in

good faith, the court finds that objectively, the

accommodations provided show that defendants acted

reasonably. To the extent Wedel may have exaggerated

behavior suggesting any discriminatory intent against plaintiff

for making these requests, this is more properly considered

part of plaintiff's retaliation claim. See supra part B.

Dpp es x2p%

Plaintiff asserts that even if he was provided the

materials, as to several requests, defendant unduly

delayed in responding. The court disagrees.

Reasonableness "Does not depend solely on the

effectiveness of timeliness" of the accommodation.

Feliberty, 98 F. 3 d at 280. Here, defendants often

tried certain accommodation techniques first before

determining that these methods were ineffective.

But because these were reasonable alternatives,

defendants acted reasonably in addressing plaintiff's

complaints. See Carter, 840 F. 2 d at 67 (upholding

district court's finding that employer reasonably

accommodated blind plaintiff where it provided

persons to act as readers, for special equipment, and

decreased plaintiff's workload, and even though

plaintiff criticized leaders and employer did not

provide requested voice-synthesized computers and

two floppy disk drives). For instance, with regard

to plaintiff's complaints about the delayed computer

programs, as early as June 1992, according to

plaintiff, (13) defendants offered plaintiff typing

services of other employees because they had no

employees skilled in transcription from tapes.

Following further complaints from plaintiff,

defendants then provided plaintiff with a tape

recorder and limited transcription services. Plaintiff

still found difficulties with the transcriber defense

offered. Wilson decl 13. However, even plaintiff

admits by March or April of 1994, the transcription

arrangement "Worked satisfactorily. " Id.

By December 1994, the defendant eliminated the

need for dictation altogether by providing a voice

control computer, Id. 15-17, and, ultimately, the

services of a graphics assistant, Id. 18.

13 defendants assert that plaintiff was provided with

secretarial support beginning in March 1992, immediately

following Dr. Phelps-recommendation.

Bag Exe p27

Thus, this is not a case where defendants the "did

not take [plaintiff's] condition or his request

seriously. ] Feliberty, 98 F3d at 280. Because

defendants continually tried to over a period of time

to meet plaintiiffs request, the court finds they acted

reasonably.

Similarly, defendants did not unreasonably handle

plaintiff's request for an ergonomic chair. Although

the chair was not actually provided until sometime

between February and April 1992, Wedel testifies,

and plaintiff does not rebut, the fact that the chair

was ordered soon after plaintiff's original request.

However, for unknown reasons this request was lost

and the item had to be reordered. This delay, there

for, cannot be used to show the defendant failed to

accommodate plaintiff.

Defendant ' accommodations seem particularly

reasonable in light of the fact that defendants

provided plaintiff with light duty employment for a

period of four years, when the law does not require

them to create a light duty position where one does

not otherwise exist. See, e.g.,Terrell, 132 F. 3 d at

626 (holding defendant not required to create a part-

time position where one does not exist); Howell v

Michelin Tire Corp., 860 F supp 148, 1492 (MD

Ala 1994). Moreover, defendants granted plaintiff's

repeated requests for medical leave Wilson sep stmt

7, tan

Finally, any delay is immaterial in this instance

because, as opposed to the case cited by plaintiff in

which delay was grounds for finding reasonable

accommodation may not have been satisfied, the

evidence shows that plaintiff's condition actually

improved, rather than deteriorated, over time (14).

14 See Wedel decl, exhibit Q at 83 (letter from Dr. Phelps to T

R Dahlstrom, Office of Workers' Compensation Programs

eT.

In contrast, there was no dispute that the condition

of the plaintiff medical doctor suffering from carpal

tunnel syndrome and Feliberty, on which plaintiff

relies, grew worse because of the delay in attending

to his needs. , Feliberty 98 F.3d at 279. The

deterioration forced that plaintiff to undergo surgery

to which was unsuccessful and, ultimately, prevent

plantiff from working altogether. Id at 279. In

some, the court finds that although plaintiff has a

least raise questions of fact as to whether he was

qualified for his position, Defendants have satisfied

their burden to reasonably accommodate him.

Accordingly, to extend plaintiff's Rehabilitation Act

claim depends on a failure to accommodate or

disability discrimination claim, the Court dismisses

these claims with prejudice,

C. Retaliation claim

14(cont'd)dated March 27th, 1992) ( reporting "[plaintiff's]

condition has improved very slightly since the time of the last

evaluation, primarily on the basis of control of activity. His

symptoms are those of more mild Carpal tunnel syndrome on

the left side and there has been objective improvement in his

declaration, exhibit LL (letter from Dr. Patrick Kong to Bertelt

dated April 25, 1994) (finding EMG and NCV studies reveal

"No definite evidence of active media neuropathy Suggesting

an active carpal tunnel syndrome on a neurophysiological test

" concluding that "patient's symptoms of carpal tunnel

syndrome may have improved significantly with the resting or

treatment in the past one or two years to the point that now the

test results have become normal. An interesting way,

reviewing the medical records, most of the record Suggests that

patient did not have any Tinel's sign prevail and Phalen's sign

of any definite muscle wasting in the past suggesting a severe

carpal tunnel syndrome. "); Wedel declaration, Exh NN at 178

(letter from Dr. Phelps to Wedel dated July 5, 1994 (reviewing

Dr. Kong's analysis and agreeing that Mr. Wilson's condition

has improved and that the condition of patient's subjective

Symptoms were of greater magnitude than one would expect

with the degree of objective findings"). Arp. &x.2 pt?

1. Legal standard for Retaliation Claim under the

Rehabilitation Act

In addition to his reasonable accommodation claim,

plaintiff also asserts that defendants unlawfully

retaliated against him because he made

accommodation requests and because he filed

several complaints between January 1994 and April

1995 against his employers at the EEOC. See

Wilson supp dec! 16-22. The court finds the plan to

satisfy his burden in this regard. The Rehabilitation

Act prohibits retaliation against federal employees.

See 29 U.S.C. 794 A (a) (1); Smith v United States

Postai Service 742 F.2d 257, 259 (6th Cir 1984).

The anti-retaliation provision of the act provides in

pertinent part: "No person shall discriminate against

an individual because such individuals has opposed

any act or practice made unlawful by this Act. " 29

USC 794 (a). An aggrieved federal employee is

entitled to the remedies, procedures, and right set

forth in title 7 of the Civil Rights Act of 1964, 42

U.S.C. 2000e, at 6, as amended. Id.

To state a prima facie case of retaliation, a plaintiff

must show that 1) he engaged in a protected

activity; 2) he suffered an adverse employment

action, and 3) there is a causal link between the

protected activity and the adverse action. See

Barnett, 157 F.3d at 753-54 (ADA case); Yartzoff

vs. Thomas, 809 F.2d 1371, 1375 (9th Cir 1987)

(Title VII case). If a plaintiff meets this burden, a

defendant carries the burden of production to

articulate a legitimate, non retaliatory reason for

terminating him. See Yartzoff, 809 F.2d at 1376.

Once a defendant satisfactorily articulates such a

reason, the legal mandatory inference of retaliation

discrimination arising from the plaintiffs prima

facie case is set aside. See Texas Department of

Pere. &x 2 e 70

Community Affairs y Burdine, 450 U.S. 248, 255

and n. 10 (1981).

At this point, a plaintiff's claim may still go

forward if the Plaintiff shows that the alleged

explanation serves merely as a pretext for

impermissible retaliation. Id at 256.

2. Analysis

A. Plantiff has established a prima facie case of

retaliation

The only issue defendants raise against plaintiff ' s

Prima facie case is whether he can Satisfy the

Causation prong of the analysis. The 9th Circuit has

held the causation maybe inferred based on an

employer's knowledge that Plaintiff engaged in a

Protected activity in the Proximity in time between

the protective action in the alleged retaliatory

employment decision. Yartzoff, 809 F. 2 d at 1376.

Defendants aver that there is no causation because

plaintiff's employer's were obviously aware of his

: ion requests, which began as early as

1991. Because the defendant's knew about

plaintiff's protected activities and that these

occurred relatively simultaneously with various

adverse actions taken against plaintiff, the court

finds the plaintiff has established a prima facie case

of retaliation.

B. Defendents have articulated nonretaliatory

reasons for its adverse employment decisions

For the reasons listed above which call to question

plaintiff's qualifications for his position, the court

finds that defendants have satisfied their burden of

articulating nonretaliatory reasons for terminating

plaintiff.

C. Plaintiff has raised questions of fact that

defendants proffered explanations are pretextual

The Ninth Circuit recently clarified the evidence

necessary for plaintiff to rebut defendent's showing

as pretextual. "When the plaintiff offers direct

evidence of discriminatory motive, a triable issue as

to the actual motivation of the employer is created

even if the evidence is not substantial. " Godwin vs.

Hunt Wesson Inc., 150 F.3d 1217, 1221 (9th Cir

1998). In these cases, the court requires " very

little" direct evidence to support a pretext argument.

Id. The Ninth Circuit has further observed that a

grant of summary judgment, though appropriate

when evidence of discriminatory intent is totally

lacking, is generally unsuitable in title VII cases in

which the plaintiff has established a prima facie

case because of the "elusive factual question" of

intentional discrimination. Yartzoff 809 F. 2 d at

1377 (internal quotations and citations omitted).

The court finds that plaintiff has testified his burden

in this regard. Plaintiff lists a number of statements

which were directed against him beginning as early

as December 1991 and continuing until at least

Beep. €x.2 p- Fz

rm ——

January 1995. Many of these statements revealed

no

discriminatory animus against plaintiff for exercise

his right to file with the EEOC or for requesting

reasonable accommodation. See, example, Godwin,

150 F.3d at 221 (holding "stray remark" which is

"uttered in an ambivalent manner and [is] not tied

directly to [the plaintiff]'s termination" is

insufficient to show pretext); Hixon vs. County of

Alameda Sheriff's Dept.No. C 97-0589 SI, 1999 W.

El 305513, at * 12 (ND Cal. May 12, 1999) -

(comments showing strained relationship without

evidence of discriminatory intent cannot be used to

show a pretext). Additionally, several of the

statements on which plaintiff relies were not said by

plaintiff's supervisors, but, rather his co-workers.

See Mattern v Eastman Kodak Co., 104 F.3d 702,

707-08 (1997) (hostility expressed by fellow

employees, unless shown to be caused by employer,

could not be attributed to employer were no proof

acts were condoned or directed by employer for

purposes of establishing liability under title VII).

Yet plaintiff has listed several statements which

could certainly qualify as demonstrating animus

toward plantiff because of his protected activities.

Plaintiff testifies, for instance, that a supervisors

may fun of plaintiff in January 1992 for wearing

wrist splints. See Wilson supp decl 2. Plaintiff also

describes an incident on June 30, 1992 when weeks

another supervisor, called plaintiff's medical

restrictions "pseudo restrictions" and expressed

skepticism when plaintiff explained his doctors

restriction on thumbing through pages of filed

materials. Notice of errata re Wilson supp decl at 2.

Plaintiff also described an incident on June 30th,

1992, in which Drake came into his office to request

information as to a recommendation which had been

frp; &x.2 p. 35

a

given by one of his doctors. When plaintiff

indicated that he did not wish to have a conversation

with Drake about this topic without recording it,

Drake blocked plaintiff's exit.

In addition, plaintiff asserts that several of Wedel's

comments and conduct indicates that she bore

animus against plaintiff for making accommodation

requests. For example, plaintiff asserts that Wedel

refused to obtain clarification from Phelps regarding

his recommendation for dictation accommodations

and consistently acted rudely toward plaintiff when

he made his request. Wilson supp decl 3. Wedel

also told plaintiff that she would not come up to his

office and measure a whole bunch of tables just to

make sure that defendants complied with plaintiff's

Dr.'s recommendations. Wilson supp dec! 1. (15).

In addition, the evidence suggests that plaintiff's

negative performance reviews closely followed on

his repeated requests for accommodation. See

Yartzoff, 809 F.2d at 1377 (employer's close

watching or surveillance raises questions about

pretext). As with the plaintiff in Yartzoff, plaintiff

was subjected to not just one, but a series of adverse

employment decisions over a period of several

years... Plaintiff's negative reports and continuous

evaluation begins soon after he began requesting

accommodations and became more intense as he

began filing the EEOC reports.

15 Although many of the alleged statements were made well

before plaintiffs EEOC requests, they are still relevant for two |

reasons. First, these comments generally followed or made

contemporaneously with plaintiff's request for accommodation.

Second, the relevant time period for the causation prong of the

prima facie case concerns the time between protected conduct

and the adverse action. Discriminatory comments, however, |

are relevant even if long before the adverse action because

they go to establish motive, and unreliability of defendants '

professed reasons for taking an adverse employment action. |

App. Ce. 2 p. 4

These negative evaluations followed a period from

1988-1991, just before plaintiff began making

accommodation requests, during which time

plaintiff received three performance reviews rating

him as fully successful, and in some cases above

fully successful. See Wilson Supp decl 23 and exh

1-3 attached thereto; See Yartzoff 809 F.2d at 1377

(evidence that plaintiff had received positive

performance ratings for years prior to his

complaints, and, just after receiving a sub average

rating provided evidence of pretext). It is probative

of pretext and thus of the "elusive factual question"

of intentional discrimination on the individual

counts. Thus, summary judgment on retaliation

claim is inappropriate at this time.

3. Plaintiff cannot show that the nondiscrimination

determinations of the M S P B were erroneous

Plaintiff's second cause of action requests the court

to review the determinations made by the MSPB.

The court reviews the MSPB's determination of the

nondiscrimination claims under a differential

standard. See by the U.S.C. 7703 (c). The

discrimination claims are subject to trial de novo.

Id. ; Sloan v West, 140 F. 3 d 1255, 1260 (9th

Circuit 1998). For the reasons Stated above, to the

extent the MSPB determined that plaintiff was

reasonably accommodated, and was not discharged

on the basis of his disability, the court affirms its

decision. However, to the extent the MSPB found

that plantiff was not retaliated against because of his

accommodation requests and EEOC complaints, the

court finds questions of fact which preclude it from

adjudicating these issues at the summary judgment

Stage. 16.

16 notwithstanding the court's conclusion, the court finds it

_ep- Es.% pP i 35

III. Conclusion

For all the reasons set forth above, the court hereby

orders that dependent's motion for summary

judgment is granted to the extent plaintiff's causes

of action for violation of the Rehabilitation Act and

for review of the M S P B decision depends upon a

finding of reasonable accommodation, but denied to

the extent these claims are based on retaliation. So

ordered.

Dated June 28th, 1999

Audrey B. Collins

United States District Judge

16(cont'd) appropriate to note, as the 9th Circuit did in

Yartzoff, that its ruling "should not emboldened [plaintiff] in

his hopes of ultimately succeeding at trial. In the face of

strong evidence presented by [defendants] showing a

legitimate reasons for [their] actions, [plaintiff's] evidence

appears weak" Yartzoff, 809 F.2d at 1377-78.

yep Ex 2 pF 6

United States District Court

Central District of California

Civil minutes-General

Case No: CV 98-2474 ABC (CTx) date: July

26,1999

Title: Wilson v Dalton

Docket entry

Present: Hon. Audrey B. Collins,United States

District Judge

Debra O'Neill, Deputy Clerk

Not Present-Court Reporter

Attorney present for plaintiff: none

Attorney present for defendants:none

Proceedings: Defendants Motion in Limine to

Exclude Evidence and Argument of Alleged

Discriminatory and Retaliatory Acts Not Raised

Until the Eve of Trial

(in chambers)

The court has expended significant judicial

resources in conducting paragraph-by paragraph

comparisons between plaintiff and defendant's

papers to determine whether plaintiff's factual

contentions were 1, (not disclosed or raise until the

eve of trial or 2) dismissed pursuant to the court's

June 29, 1999 grant of partial summary judgment to

defendant on the ground of reasonable

accommodation. In addition, the court considered

whether the various contentions were relevant to

plaintiffs remaining claims as outlined in the court's

prior minute order of July 21, 1999. Based on these

considerations, the court has excluded entirely or

edited certain contentions.

1. The court has determined following contentions

should be excluded in their entirety because they

contain allegations that were not race until the eve

of trial:32, 45, 51, 58, 74,(1), 83, 84, and 85.

2. The Court has edited the following contentions

because they contain allegations that were not raised

until the eve of trial:

A. 38 shall read as follows:

"Shortly after January 27, 1992, plaintiff rejected a

light duty job offer on the basis that the Navy had

failed to provide a flex arm workstation. "

B. 59 shall read as follows:

"As an act of physical disabilities discrimination the

harassment of plaintiff for making reasonable

accommodation requests, plaintiff's first level

_ supervisor, Sam Drake, gave plantiff a 1 day notice

late on August 26, 1992, to attend an early morning

meeting on August 28, 1992, with Gerry Weeks,

San Drake, and plaintiff. Plaintiff was requested to

find an "unbiased witness" of his choice. "

C. 67 shall read as follows:

“As an act of physical disabilities discrimination

and harassment and retaliation against plaintiff for

making reasonable accommodation requests and

EEO filings, Sam Drake requested numerous

meetings with plaintiff, sometimes the meetings

occurred as much as three times per day. The

documented meetings with witnesses (Lisa Stuckey

and (1 time) Mike Lastrico) occurred from

approximately April 1993 until September 1993. "

1. Plaintiff may not assert this claim with regard to

his conversation with Sam Drake about the transfer

issue because it was not raised until the eve of trial.

Plaintiff may, however,testify that he wanted to

transfer, a claim that he has previously raised.

hep: Er.3 i e

D. 69 shall read as follows:(2)

"As an act of Physical disabilities discrimination

and harassment and retaliation against plaintiff for

making reasonable accommodation requests and

EEO filings, on April 21, 1993, Plaintiff's's

Supervisor, Sam Drake told plaintiff that, "Work

performance was unsatisfactory, another PIP would

Start in few weeks. "

€. 132 show read as follows:

"As an act of harassment and retaliation plaintiff

filing a grievance against them, in mid-] 992, Arlene

Black and Mary Wedel advised Sam Drake not to

pursue the fitness for duty exam that had been

approved by the command up to and including Lyle

Hochburger. Plaintiff had no knowledge of Mary

and Arlene's recommendation to Sam Drake or the

fitness for duty until 1994.

3. The court has determined the following

contention's should be excluded in their entirety

because they were because they contain allegations

that were dismissed pursuant to the court's June 29,

1999, grant of partial summary judgment on the

issue of reasonable accommodation:(3) 31, 47, 53,

54, 55, 56, 56,65, 71, 75,77, 105, 109, 110, 111,

115, 116, 117, 118, 121

allegations were dismissed pursuant to the court's June 29,

1999 grant of partial summary judgment

3 the court's minute order of July 21, 1999, explained the

distinction between the types of reasonable accommodation-

related facts which a necessary to plaintiffs remaining claim

reargue the court's prior holding that the Navy made

reasonably accommodated plaintiff's disability to the guise of

discrimination or harassment. hep. Ex. 3 Pp?

4. The court has edited the following contentions

because they contain allegations that were dismissed

pursuant to the court's June 29, 1999, grant of

partial summary judgment on the issue of

reasonable accommodation:

a. 35 shall read as follows:

"Shortly thereafter, when plaintiff was provided

with a three by four foot magic marker board, as a

reasonable accommodation to plaintiff's request for

a deskomatic device, Sam Drake, his supervisor,

harassed plaintiff on account of his disability and

request for reason accommodations, by pointing to

the Magic marker board and saying sardonically,

"There's your workstation device. " On another

occasion, in order to harass plaintiff, Bob Stall, an

engineer who worked in plaintiff's division, came

up to plaintiff and said with respect to plaintiff's

wrist splints, "Gee, is that all you need to show that

you have an injury?""

b. 37 shall read as follows:

"In January of 1992 plaintiff made complaints that

defendant was not accommodating his disability. "

c. 40 shall read as follows:

"As an act of retaliation against plaintiff for making

reasonable accommodation requests, Sam Drake

told plaintiff that if the Dictaphone was procured,

that plaintiff "Would not know how to use it

anyway. ) on :

3 (cont'd) Thus, plaintiff may, for instance, provide testimony

that a particular doctor made a recommendation on a certain

date. See example 98 However, he may not characterize the

Navy's conduct in providing certain accommodations as

unreasonable by, for instance, asserting that the government

delayed in providing a certain accommodation or retaliated

against him by wrongfully denying him a particular

accommodation. See example 105. App- Gr. 5 p.¥

Summary judgment as well as a briefing with regard

to this motion, Frequently, the court discovered that

despite plaintiffs assertion that a Specific fact was

argument on this issue at the pre trial Conference on

August 2nd, 1999, App ex p.s

—

General statements of that a certain factual

allegation appeared among the 14, 000 pages of

discovery are insufficient to constitute sufficient

prior notice of the claim.

Copies to: Judge Collins

Counsel of record

Deputy clerk S/J.S N

I hereby certify that this document was served by

fax delivery on plaintiff/defendant (or parties) at

their respective most recent fax number of record in

this action on this date.

Date 7-27-99

Debra O'neill deputy clerk

8 7e. Cm 3 p-6

Not For Publication Filed April 26,

2002

United States Court of Appeals Cathy A. Catterson

For the Ninth Circuit Clerk, U.S. Court of

Appeals

Robert C. Wilson, No. 00-5528]

Plaintiff-Appellant DCNo. CP-98-2474-ABC

V.

John Dalton, Secretary of

Navy; United States Navy,

Defendants-Appellees,

Before: B F letcher,TG Nelson, &Berzon,Cir.Judges

The panel has voted to deny Appellant's petition for

rehearing. J udge TG Nelson and J udge Berzon vote

to deny the petition for rehearing en banc and J udge

B. Fletcher so recommends.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has

requested a vote on whether to rehear the matter en

banc.Fed R.App.P.355,

The petition for rehearing and the petitionn for

rehearing en banc are denied.

App: Cry. Y

:~C Oe